The Supreme Court agreed on Wednesday to hear a case that does not involve Donald Trump as a defendant but which could, nonetheless, have a dramatic impact on one of the criminal cases that is pending against the former president.
Here’s the background.
On Jan. 6, 2021, over 2,000 Trump supporters entered the U.S. Capitol and disrupted Congress as it attempted to certify the results of the presidential election. Joseph Fischer, Edward Lang, and Garret Miller were among them. The three were subsequently charged in separate indictments with various offenses.
While they do not contest the validity of many of the charges that are still pending against them, each filed a motion to dismiss a charge common to each of them: obstructing an official proceeding in violation of 18 U.S. Code § 1512(c)(2). That statute provides:
(c) Whoever corruptly—
(1) 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
(2) 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.
This statute, passed in 2002 as part of the Sarbanes-Oxley Act, was part of the government’s response to the Enron scandal in which executives at Arthur Andersen, Enron’s outside auditor, ordered the destruction of “tons” of documents over a two-week period—literally bringing in a mobile shredding truck and shredders from another company so that they could shred documents around-the-clock at a rate of 7,000 pounds per hour—after the failed energy trading company learned that its accounting practices were the subject of an investigation by federal regulators.
While this law was clearly aimed at corporate wrongdoing that involves an attempt to obstruct a government investigation or proceeding by destroying potential documentary evidence or tampering with witnesses, the government has, on occasion, attempted to broadly apply this law to other, less common circumstances. For example, in Yates v. United States, the government charged a fishing boat captain with violating a similar provision in Sarbanes-Oxley for “destroying” allegedly undersized fish (by tossing them overboard) in order to “impede” a federal investigation being conducted by an official acting on behalf of the National Oceanic and Atmospheric Administration. In 2015, a closely divided Supreme Court held that “destroying” a fish did not fit within the type of evidence to which the statute applies.
The federal trial judge in Miller’s case granted his motion to dismiss the obstruction count, holding that, while the joint session of Congress on Jan. 6 was an “official proceeding,” the conduct alleged in the indictment fell outside the scope of the statute. The court concluded that the language in the first subsection modified the scope of the second subsection and that the indictment was deficient because the government did not allege that Miller “took some action with respect to a document, record, or other object in order to corruptly obstruct, impede, or influence Congress’s certification of the electoral vote.” For this reason, the judge also dismissed the obstruction counts against Fischer and Lang.
However, a divided panel of the D.C. Circuit Court reversed the district court’s decision.
The majority opinion, written by Judge Florence Pan (a Biden appointee) and joined by Judge Justin Walker (a Trump appointee), adopted the government’s argument that the use of the word “otherwise” in subsection (c)(2) was meant as a “catchall” to encompass any and all forms of obstructive conduct designed to impact any federal investigation or other “official proceeding.”
Judge Greg Katsas (a Trump appointee) dissented, arguing that the word “otherwise” was meant to convey that the obstructive act must be of the same type, and in a similar manner, as those items listed immediately beforehand in subsection (c)(1)—all of which deal with tampering with or impairing the acquisition of relevant evidence, such as witness tampering or destroying, altering, or fabricating a document—and that, at the very least, any ambiguity in the statute ought to be resolved in favor of the accused (a well-established principle in criminal law known as the Rule of Lenity).
The eventual decision by the Supreme Court in Fischer v. United States could have a far-reaching impact not only on the more than 300 individuals who have been charged with violating that statute in connection with their actions on Jan. 6, but also on the criminal case that Special Counsel Jack Smith has brought against former President Trump that is pending in federal court in the District of Columbia before Judge Tanya Chutkan.
In that case, Trump has been charged with committing four crimes, including conspiracy to obstruct an official proceeding (Count Two) and obstruction of and attempt to obstruct an official proceeding (Count Three), both of which would likely fall if the Supreme Court rules against the government in the Fischer case. That is because, setting aside the issue of whether Trump bears any responsibility for what happened at the Capitol on Jan. 6, it is clear that what happened did not involve document destruction or witness tampering.
The remaining charges also rest on a tenuous legal footing.
Count One alleges that Trump engaged in a conspiracy to defraud the United States in violation of 18 U.S. Code § 371 by using dishonesty to obstruct the procedures by which votes are collected, counted, and certified. In recent years, in cases like Kelly v. United States (2020), Ciminelli v. United States (2023), and Percoco v. United States (2023), the Supreme Court has taken a dim view of more amorphous theories of what constitutes fraud against the United States. As Justice Clarence Thomas wrote for a unanimous Supreme Court in Ciminelli, “Federal fraud statutes criminalize only schemes to deprive people of traditional property rights,” i.e., money or property. As the court said, federal “fraud statutes do no not vest a general power in ‘the Federal government … to enforce (its view of) integrity in broad swaths of state and local policymaking.’”
Here, there is no claim in the indictment that Trump was attempting to defraud anyone of money or property, which the Supreme Court has suggested is a necessary precondition of any claim under any federal fraud statute, including this one.
Count Four alleges that Trump engaged in a conspiracy against rights in violation of 18 U.S. Code § 241. This statute, which was part of the Enforcement Act of 1871, also known as the Ku Klux Klan Act, was designed to stop the terrible violence, threats, and intimidation being committed against newly freed blacks and their white allies in the South. The act prohibits anyone from conspiring to “injure, oppress, threaten, or intimidate” any person from “the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”
The theory behind this charge seems to be that it was unlawful to attempt to deprive people who voted for Joe Biden, who was ultimately declared the winner, of their votes. The indictment suggests that merely questioning the conduct of an election or the propriety of election procedures, including raising such issues in court, could constitute an attempt to “disenfranchise” all the people who voted for the person who was—rightly or wrongly—declared the winner, in this case, Joe Biden.
One could easily imagine how this would have a chilling effect on the First Amendment rights of anyone who dares to question the conduct of our elections or the results in a particular election.
I don’t recall anyone claiming that then-Vice President Al Gore or anyone connected with his campaign could or should be charged with conspiring to overturn an election in 2000 when he mounted numerous legal challenges against George W. Bush, which could, under this indictment’s theory, be characterized as an attempt to disenfranchise those who voted for Bush. Lest anyone forget, Al Gore lost the initial vote count in Florida and every single recount in every single county in Florida, including Palm Beach County. Yet Gore continued to contest the election until the Supreme Court put an end to the litigation in Bush v. Gore.
The same could be said for those who said rigged voting machines in Ohio cost John Kerry the election in 2004 as well as those who urged Trump electors to vote for Hillary Clinton following the 2016 election because Trump was an “illegitimate” president who had colluded with Russian intelligence agents to steal the election.
This is not the first time that Jack Smith has been overly aggressive in his attempts to unreasonably expand the text of a criminal statute in a case involving a public official. In 2016, a unanimous Supreme Court overturned the bribery conviction that Smith had obtained against former Virginia Gov. Bob McDonnell, concluding that many of the acts that McDonnell engaged in did not constitute “official acts” and that adopting Smith’s reading of the federal bribery statute would likely chill the interactions of public officials with their constituents out of fear of prosecution, making it difficult for them to do their jobs.
Proceedings in the D.C. case are currently on hold pending Trump’s appeal of Chutkan’s decision denying his motion to dismiss all the charges on the grounds of presidential immunity and double jeopardy. This threatens to delay the trial, currently scheduled to begin on March 4, which is why Smith has filed an “extraordinary request” urging the Supreme Court to hear that appeal on an expedited basis, bypassing review by the D.C. Circuit. The Supreme Court’s decision to hear the Fischer case is yet another reason why the trial is likely to be delayed.
With the trial dates of other three criminal cases against Trump up in the air, it is far from clear that any of these trials will occur anytime soon, much to the dismay and disappointment of liberals and Never-Trumpers.
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