Supreme Court justices are set to discuss next week whether to take up appeals from Jan. 6 defendants in the upcoming term — and legal experts say the outcome of any legal battles settled by the high court could ultimately affect the Justice Department’s prosecution of former President Donald Trump.
The court’s nine justices are scheduled to consider at least one of a few cases challenging a federal obstruction of justice statute during a private conference on Tuesday, Sept. 26. The new term opens Oct. 2.
At least four justices would have to vote in favor of reviewing a dispute for oral arguments to be scheduled.
Court watchers are split over whether that many are willing to wade into the political fray, given the implications it could have on other cases related to the U.S. Capitol riot — including Mr. Trump’s trial in Washington on election fraud charges brought by special counsel Jack Smith.
“The cases raise a question of the proper interpretation of a federal statute that is being applied regularly against January 6 defendants and potentially against Trump himself at some point. It would not surprise me to see the Supreme Court agree to hear the case,” said Rick Hasen, a law professor at the University of California, Los Angeles.
“Anything the court rules here may affect Trump directly or indirectly. I suspect the court will stay out of the fray, unless it is the United States filing the appeal,” said Josh Blackman, a professor at South Texas College of Law.
Garret Miller, who was convicted for rioting at the Capitol on Jan. 6, 2021, has asked the Supreme Court to review his case.
Prosecutors charged him under a federal law that his lawyer says hasn’t been used in decades and was originally designed to protect the destruction of evidence related to obstructing an official criminal probe.
“Before January 6, no court had characterized political protest at the seat of government, however disorderly, as an obstruction-of-justice offense sounding in Chapter 73 of Title 18,” his lawyer wrote in the petition.
Prosecutors have charged about 300 of nearly 1,000 Jan. 6 defendants with violating the Sarbanes-Oxley Act, which regulates financial record keeping and documentation.
Title 18 Section 1512 of the law applies to anyone who corruptly “Alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with 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.”
Anyone convicted under Sarbanes-Oxley could face a fine and up to 20 years in prison.
Other Jan. 6 defendants have filed a petition in support of Miller’s request, arguing for the court to provide clarity on the statute and if the feds can use it against them.
Edward Lang, a Jan. 6 protester, has asked the justices to review his charge under the same statute: obstructing an official proceeding. Joseph Fischer, a former police officer from Pennsylvania and a Jan. 6 defendant, filed a similar petition last week.
Congress passed the Sarbanes-Oxley Act of 2002 in the wake of the Enron Corp. accounting scandal and was aimed at preserving evidence as part of federal investigations.
The U.S. Court of Appeals for the D.C. Circuit ruled against the Jan. 6 defendants, allowing prosecutors to use the statute to go after their Capitol riot-related charges.
A spokesperson for the Justice Department did not immediately respond to a request for comment about the appeals to the high court.
Curt Levey, president of the Committee for Justice, said the Supreme Court doesn’t typically take up a criminal appeal when the case focuses on the facts surrounding a specific defendant or event, but the justices have been known to take up criminal appeals dealing with statutory interpretation and the constitutional implications.\
“The justices will certainly pay close attention to these petitions because they have shown an interest in curbing the increasing tendency of prosecutors both to stretch federal criminal laws and to criminalize politics. Both factors are present here, where prosecutors are stretching a law intended to deal with the destruction of documents or other evidence to encompass a political protest that turned into a riot and temporarily interrupted the counting of electoral votes,” Mr. Levey said.
Mr. Trump also faces a charge under Section 1512 of Title 18 in the federal case pending in Washington. He delivered a speech before the riot that prosecutors say incited some protesters to storm the Capitol in an attempt to stop Congress’ certification of electoral votes and confirm President Biden’s victory.
Elliot Mincberg, senior fellow for the People For the American Way, said he doubts that Mr. Trump’s trial would be delayed if the high court were to review the issue and hear one of the Jan. 6 defendant’s petitions.
“I’m not sure there is a strong argument that the court taking this case is a reason to delay what Smith is doing,” Mr. Mincberg said. “Certainly [Mr. Trump] will raise this.”
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.