The statute can be applied to threatening judges, jurors or witnesses. About a third of the 700 defendants who were charged in January for their alleged efforts to disrupt the electoral vote tally have been charged with obstruction.
At a hearing on Monday for the Richardson, Texas, man, Nichols asked a prosecutor if the obstruction statute could have been violated by someone who called Vice President Pence to try to get him to sign the certification. The prosecutor was asked by the judge to assume the person trying to convince Pence had a guilty mind.
The president was publicly and privately pressuring the vice president to decline to certify the victory of Joe Biden, but no mention was made of that. John Eastman was one of the allies that Trump enlisted.
James Pearce, an attorney with the Justice Department Criminal Division, initially dismissed the idea that trying to get Pence to refuse to recognize the electoral result would be a crime.
The judge was told that he didn't see how that got him.
If the person reaching out to the vice president knew that he had an obligation to recognize the result, it might be a crime.
One of the definitions of corruptly is trying to get someone to violate a legal duty, if that person does that knowing it is not an available argument.
Clinton Broden, Miller's defense attorney, argued that the judge's example showed the problem with reading the obstruction statute to cover almost any kind of effort to delay almost anything a federal government official or body was planning to do.
The judge and prosecutor discussed the subject without mentioning Trump, but the defense attorney was harsher.
If there is evidence that former President Trump tried to convince Vice President Pence not to certify the election, that could be a violation of the obstruction. It seems like the rabbit trail we are going to go down is the government's reading of the statute.
Trump has maintained publicly that he believed that the electoral votes submitted by state officials could have been refused to recognize by the vice president, which could have thrown the election into the House of Representatives.
The legal opinions prepared by Eastman were used to make those arguments. Most other lawyers have ridiculed that claim. It would be dangerous if he did not have the ability to make decisions in the process.
The question of whether the Justice Department is going to investigate whether the former president committed any crimes in connection with the events of January 6 was raised by the discussion of Trump's potential criminal culpability in the Capitol riot.
The internal Justice Department emails released last week show officials trying to address the delicate issue in the hours and days after the January 6th attack.
The acting U.S. Attorney told reporters on a conference call that anyone who had a role in the riot will be charged.
Over the past 10 months, there have been no outward signs that the Justice Department is investigating Trump or the people closest to him over their activities in the lead-up to or during the riot. The judges criticized some of the comments that Sherwin made to the media.
Miller is accused of obstruction, assault on a federal officer, and making threats against a police officer. Miller made calls for violence on social media after the takeover of the Capitol. Miller allegedly replied to the call for Trump's impeachment by saying, "Assassinate AOC."
More than half a dozen Capitol riot defendants are challenging the use of the obstruction charge in their cases.
According to the defense attorney, the government interpretation was so broad that disrupting almost any activity a judge is doing could be obstruction and carry a 20-year prison term.
There has to be a limit. Is it an official proceeding if someone comes in as the court is performing a wedding? The rule of lenity is a legal doctrine that encourages the court to give the defendants the benefit of doubt.
On Monday, Nichols did not give a clear indication of where he would go on the question, which is being pondered by other judges.
The prosecution and defense in Miller's case argued on Monday about the claims that Jan. 6 defendants are being treated unfairly for political reasons.
The Portland rioters engaged in more assaultive conduct than Mr. Miller is accused of. I think it is a concern for a large segment of the public.
David Lieberman, an attorney with the Justice Department's Criminal Division, said prosecutors had good reason to separate the cases, including the gravity of the Capitol attack and the fact that the evidence against many of those charged in Portland was not as good as that available for the Capitol cases.
Lieberman said that officers in Portland were trying to identify a person in the crowd at 2 a.m.
Miller was going to reject the government's proposal that he plead guilty to the obstruction charge and the assault charge and then resolve the case. Miller was accused of making a threat against Ocasio-Cortez.
After the two-hour court hearing on Monday, Nichols heard arguments in a secret about whether Miller should be released. The public was not allowed in that portion of the session.
There is no trial date set, but there will be another hearing in December. He was concerned that Miller and the relatively small fraction of Jan. 6 defendants who are in pretrial detention are under a lot of pressure because of delays brought on by the Pandemic and the Capitol riot.
The judge said that the case needs to be moved as quickly as possible.
Kyle Cheney was involved in the report.
