The Supreme Court is slated to consider whether to grant petitions from defendants charged in relation to the Jan. 6 riot that could have implications for the criminal prosecution of former President Donald Trump.
The defendants are seeking to dismiss a charge in their indictments alleging they obstructed an official proceeding at the U.S. Capitol on Jan. 6, 2021, when Congress was temporarily stalled from certifying President Joe Biden's victory after rioters stormed the building. Justices will convene for a semi-regular private conference on Friday, where they will weigh whether to allow an oral argument review involving defendants Edward Lang, Joseph Fischer, and Garrett Miller.
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The Supreme Court is being asked to consider whether Section 1512 (c)(2) of the United States Code is the right statute under which to prosecute the defendants. Defense counsel for Lang argued the dispute over this statute could affect "hundreds of cases as the Department of Justice continues to charge folks who participated in a protest turned violent on January 6, 2021," according to a petition filed on July 11.
Trump has also been charged with the same offense, among others, in his four-count federal election interference case brought by special counsel Jack Smith.
If the justices reject the case, a lower court ruling that permitted the government to pursue charges against the defendants would remain in place. Conversely, taking up the case could create a delay over their respective legal troubles until oral arguments could be heard sometime in the spring, and it would take up to the end of June for the justices to render a decision. At least four votes are needed for the nine-member court to grant a case for review.
Additionally, Trump's own counsel could see the granting of the petition as a new opportunity to request a delay in his election inference trial, which is slated to start on March 4, the day before numerous states vote for who will become the Republican nominee for the general election in November.
Lang was allegedly captured on video the day of the riot using a police riot shield and slamming it into the ground near law enforcement, according to an FBI affidavit. He is also accused of swinging a baseball bat at police officers multiple times, striking officers' shields.
Lang's counsel sought to dismiss the obstruction charge, which carries a 20-year sentence, ahead of his trial, and the U.S. District Court for the District of Columbia granted his motion. An appeals court later reversed the lower court's judgment, and a motion for a rehearing was denied.
The charge in question carries the stiffest penalty available to prosecutors so far in the Jan. 6 cases they've brought, and it has also been applied to several notable figures involved in the riot, including Enrique Tarrio and Stewart Rhodes, leaders of the groups Proud Boys and Oath Keepers, respectively. Tarrio was sentenced to 22 years in prison in September, and Rhodes was sentenced to 18 years in May.
Trump is the leading contender for the GOP nomination, and any delay in his trial would likely benefit him because a victory in 2024 could dismiss the charges he faces in two federal cases. The other case involves his indictment over alleged mishandling of classified documents. If the D.C. case proceeds in March as scheduled, there's a chance he could be convicted before the election.
Attorneys for the former president wrote in an October filing seeking to dismiss the case that Smith's indictment inappropriately applied the statute in question to their client. The "indictment takes a statute directed at the destruction of records in accounting fraud and applies it to disputing the outcome of a Presidential election. This stretches the statutory language beyond any plausible mooring to its text,” the attorneys wrote.
Lang's attorney, Norm Pattis, previously told the Washington Examiner that the government took an overly broad approach when applying the statute to his client.
"What does it mean to do something corruptly?" Pattis asked, adding that the upshot of allowing this charge to stand means that "a lot of people are going to be afraid to turn up at public events for fear if somebody acts up, they're all going to go to prison."
The Supreme Court receives thousands of petitions each term and only grants about 60 to 70 of them. However, in recent years, the justices have been prone to examining criminal statutes when challengers can provide a conceivable argument that the scope of the statutes' application against a defendant is overly broad.
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December is typically the final month in the court's nine-month term when the justices will decide to take up cases for the current term, meaning a grant of the application would see this case argued and decided by the end of June. The justices were supposed to consider these cases last week but were delayed due to the death of former Justice Sandra Day O'Connor, who retired from the bench in 2006.
Even if the high court granted the case and Trump succeeded in a temporary delay of his trial, the election subversion case against Trump could move forward after the high court rules in the summer. A decision on whether to take the case could be imminent after Friday's conference because the Supreme Court regularly releases an orders list on Mondays denoting whether any new cases have been granted or denied.