Supreme Court to Hear Jan. 6 Appeal, Complicating Trump Case

Greg Stohr
·4 min read
268
  • Oops!
    Something went wrong.
    Please try again later.
  • Oops!
    Something went wrong.
    Please try again later.

(Bloomberg) -- The US Supreme Court added a new complication to the prosecution of Donald Trump for trying to overturn the 2020 presidential election, as the justices agreed to hear an appeal from a Jan. 6 Capitol riot defendant facing a related charge.

Most Read from Bloomberg

The justices said Wednesday they will decide whether Joseph Fischer can be charged under a 2002 law that grew out of the Enron Corp. collapse for obstructing an official proceeding. Prosecutors have also invoked that law against Trump, as well as in 300 other Capitol riot cases.

Supreme Court involvement could give Trump new grounds for arguing to push back his March 4 federal court trial in Washington until after the 2024 presidential election. Trump is currently the frontrunner for the Republican nomination.

Ultimately, a ruling favoring Fischer could upend two of the four counts Trump is facing in the case, one of four criminal prosecutions against him. The Supreme Court will hear arguments next year and probably rule by the end of June.

The decision to hear the appeal comes two days after the special counsel pressing the charges against Trump asked the justices to decide on a fast-track basis whether the former president is entitled to absolute immunity. The justices could decide as soon as next week whether to immediately review a judge’s ruling rejecting Trump’s immunity claims.

Fischer was allegedly part of the mob that forced Congress to delay its certification of Joe Biden’s victory in the 2020 presidential election.

Trump Uncertainty

The Supreme Court’s decision to accept the case suggests that at least four justices believe there is a legitimate argument that the obstruction statute does not apply to interfering with the joint session of Congress, according to former federal prosecutor Barbara McQuade.

“It creates some uncertainty for the Trump indictment, which includes two counts that rely on that same legal theory,” McQuade said. “On the other hand, two other counts do not rely on this theory at all, and so the case can and should proceed without regard to this issue.”

But Timothy Parlatore, a criminal defense lawyer who once represented Trump in the Jan. 6 prosecution, said Supreme Court review is “a potential game changer” for the ex-president’s case. If the court rules for Fischer, “it will completely gut the Trump indictment,” he said.

Jim Zirin, a former federal prosecutor, said the Supreme Court’s move could ultimately be good for Special Counsel Jack Smith, who is prosecuting Trump. It will let Smith “know sooner rather than later what — if anything — the Supreme Court is going to say the law requires to hold someone criminally liable for obstruction.”

Fischer contends the Justice Department is overstretching a provision in the 2002 Sarbanes-Oxley Act that was designed to outlaw the destruction of corporate documents in cases of financial wrongdoing.

Although the charge has been used in about 300 cases related to the Jan. 6 attack, it’s only been applied 69 times in actual sentences handed down by the courts, according to statistics from the US attorney’s office in Washington, which is leading the prosecution of the cases.

The provision authorizes as much as 20 years in prison for a person who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object” with the intent to undermine an official proceeding. A second prong applies to anyone who “otherwise obstructs, influences, or impedes any official proceeding.”

Obstruction Debate

In a 2-1 decision, the US Court of Appeals for the District of Columbia said the second part of the law could apply to Jan. 6 defendants. Writing the court’s lead opinion, Judge Florence Pan said the “most natural reading” of the second prong was that it “applies to all forms of corrupt obstruction of an official proceeding” other than those covered by the provision’s first part.

Fischer’s lawyers told the Supreme Court that the appeal raises “an important question of federal law affecting hundreds of prosecutions arising from January 6, including the prosecution of former President Donald Trump.”

The Biden administration urged the Supreme Court not to hear the appeal, saying the lower court reached the correct conclusion. It is “natural to say that a defendant obstructs an official proceeding by physically blocking it,” argued Solicitor General Elizabeth Prelogar, the administration’s top Supreme Court lawyer.

Prelogar’s filing didn’t discuss the impact on the Trump prosecution by Smith.

Before Jan. 6, Fischer allegedly sent text messages advocating violence, including one that said “If Trump don’t get in we better get to war.” He is accused of assaulting at least one police officer during the riot.

Fischer says he arrived at the Capitol grounds after Congress had recessed and wasn’t part of the mob that forced the certification to stop.

The case is Fischer v. United States, 23-5572.

--With assistance from Zoe Tillman, Erik Larson and Chris Strohm.

(Updates with reaction, details of charge, starting in 10th paragraph.)

Most Read from Bloomberg Businessweek

©2023 Bloomberg L.P.