THIS WEEK’S OTHER TRUMP LEGAL STORY. The trial of former President Donald Trump, the paperwork case over the nondisclosure agreement he had with a porn star, continues with jury selection in Manhattan. It’s been extensively covered; this newsletter wrote not one but two previews last week, plus more discussion yesterday. So enough about that for a moment. It turns out there is another extremely important Trump-related court event that took place in Washington today, one that could have as much effect on the former president’s future as the trial in New York.
On Tuesday morning, the Supreme Court heard the case of Joseph W. Fischer v. United States. Fischer, who in 2021 was a police officer in Pennsylvania, took part in the Jan. 6 Capitol riot. He is charged with many of the usual charges against Jan. 6ers — misdemeanor trespassing and disorderly conduct charges. The two most serious charges against him are “assaulting, resisting, or impeding” police officers and “obstruction of an official proceeding,” both of which are felonies. On the first, Fischer claims he was inside the Capitol when he was pushed by the crowd into a police line. But it is the second felony, obstruction of an official proceeding, that has become the subject of a Supreme Court case.
Federal prosecutors have charged about 350 Jan. 6 defendants, including Fischer, with this particular obstruction charge. According to the Justice Department, for about 50 defendants, it was the most serious charge they faced, the only felony, and the average sentence for them has been 26 months in jail. (On many occasions, the Justice Department wanted even longer sentences.)
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The law in question, known as 1512(c)(2), was passed in 2002 as part of the Sarbanes-Oxley Act, which was designed to crack down on white-collar crime in the aftermath of the Enron scandal. The part of the law that the Justice Department has used to charge Jan. 6 defendants concerned white-collar evidence tampering, specifically a weird situation that existed at the time in which it was illegal for a corporate officer to tell an underling to destroy documents but not illegal for the officer to do it himself. So the section of the 2002 law said, “Whoever corruptly alters, destroys, mutilates or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
What does that have to do with Jan. 6? Nothing, actually. 1512(c)(2) was clearly intended to target corrupt executives who might be inclined to shred documents or wipe hard drives in the face of criminal investigations. But the Justice Department is using it against Jan. 6 rioters. How? By focusing on the part that says anyone who “otherwise obstructs, influences, or impedes any official proceeding.” So, a law that was intended to be used against document destroyers was used instead against Capitol rioters. “The obstruction charge was never an easy fit in the cases stemming from the storming of the Capitol,” the New York Times reported last December. “When it was passed in the early 2000s, the law was aimed at curbing corporate malfeasance by outlawing things like destroying documents or tampering with witnesses or evidence.”
Some Jan. 6 defendants challenged their convictions under 1512(c)(2), but every federal judge who heard the cases sided with the Justice Department. All of them, that is, except one, a Trump appointee named Carl Nichols who dismissed the charge against defendant Fischer. The Justice Department appealed and won, but the appeals court judges didn’t agree with each other much on the reasons why they were upholding the charge against Nichols. Still, it seemed a victory for the Justice Department. After all, if judges threw out every conviction involving a 1512(c)(2) charge — well, that would be a lot of convictions.
Then, the Supreme Court decided to hear the case. And at today’s argument, several justices appeared to be leaning against the Justice Department. “The Supreme Court seemed wary on Tuesday of letting prosecutors use a federal obstruction law to charge hundreds of rioters involved in the Capitol attack,” the New York Times reported. “The Supreme Court’s conservatives appeared skeptical Tuesday of the way federal prosecutors have deployed a felony charge devised in the aftermath of the 20-year-old Enron financial scandal against about 350 rioters convicted or accused of storming the Capitol on Jan. 6, 2021,” reported Politico.
So, by the time this year’s Supreme Court term ends, there might be big news on the Jan. 6 prosecutions front. And one more thing. You know those 350 accused rioters charged with violating 1512(c)(2)? There’s one more Jan. 6 figure facing that charge, and it is former President Donald Trump. In the case based on the 2020 election and Jan. 6, Jack Smith, the special counsel chosen by the Biden Justice Department to pursue Trump, has charged Trump with two counts of violating 1512(C)(2). It makes up, in fact, two of the four counts against Trump in that prosecution. If the Supreme Court says the law is inappropriate in the Fischer case, Trump will surely move to toss it from his indictment too. The Justice Department will of course fight to the end — they are desperate to put Trump on trial on federal charges before the election — but it could turn out the Supreme Court will make a major change in many, many Jan. 6 prosecutions, including the most famous one of all.