Prosecutors eyed obstruction charges months before Jack Smith took over Trump case

The filing relates to search warrants obtained by prosecutors in June and July 2022 to scour the personal email accounts of former Justice Department official Jeffrey Clark, his deputy Kenneth Klukowski and the Chapman University account of attorney John Eastman. Those warrants had previously been disclosed by U.S. District Court Judge Beryl Howell, who unsealed documents connected to the search a full year ago.

However, the versions of the documents released last year were redacted to conceal the precise charges being considered by prosecutors as they obtained those warrants. On Tuesday, the newly unsealed document revealed that the potential charges included “obstruction of an official proceeding” and “false statements.”

Smith took over the investigation two months after federal prosecutors obtained access to Clark’s emails — including hundreds of drafts of an autobiography that included his thoughts related to the 2020 election. And in August 2023, Smith obtained a grand jury indictment charging Trump himself with the same obstruction charge that prosecutors were investigating before he took over the case. Clark was identified as “co-conspirator 4,” one of six alleged co-conspirators who all remain uncharged.

The filing indicates federal prosecutors began weighing obstruction charges in connection with the Trump probe well before the House’s Jan. 6 select committee formally recommended that the former president be indicted on the charge. The “obstruction of an official proceeding” law — which has now been leveled against more than 300 Jan. 6 defendants — is itself under scrutiny by the Supreme Court, which agreed last week to consider a challenge to the way prosecutors have used it against the pro-Trump rioters.

The new filing underscores the protracted and elaborate process that prosecutors undertook before bringing charges against Trump. Despite Trump’s repeated claims that prosecutors timed the criminal charges against him to coincide with his bid to retake the White House, the underlying documents show that the Justice Department fought extensive battles throughout 2022 to access crucial information to support a criminal case.

Those battles appeared to begin around the same time that California-based U.S. District Court Judge David Carter concluded that Trump and Eastman “likely” conspired to disrupt the transfer of power, including by their attempts to obstruct Congress’ Jan. 6 proceedings. Carter’s March 28, 2022 opinion — which came after the Jan. 6 committee similarly suggested Trump may have committed obstruction — was the first judicial determination that Trump may have violated the law, and it facilitated the House panel’s access to Eastman’s emails.

But it would be another six months before the Justice Department would win closed-door court battles to access Clark’s emails. The battles included three springtime hearings to develop a “filter protocol” meant to shield privileged materials from investigators, the approval of an initial search warrant to seize Eastman and Clark’s devices in June 2022, additional search warrants to govern the review of those devices, disclosing the files to Clark and his attorney, and a final determination by Howell in September 2022 that permitted investigators to access a subset of the seized files.

The end of this process coincided with a series of secret legal battles by Trump seeking to block investigators’ access to key witnesses like his White House counsel Pat Cipollone and former chief of staff Mark Meadows. Those battles began in October 2022, when prosecutors sought to interview top aides to former Vice President Mike Pence, and ended in April, when Trump’s objections were defeated and top aides, as well as Pence himself, testified before the grand jury.