“Incredibly significant” Supreme Court case could derail Trump prosecution: Legal expert

The Supreme Court on Wednesday agreed to hear an appeal brought by a man who was charged with "obstruction of an official proceeding" relating to the Jan. 6, 2021, assault on the U.S. Capitol — and although this case does not directly involve Donald Trump, it could have significant implications for the criminal prosecutions of the former president. 

The central question in this case revolves around whether the criminal statute on obstructing an official proceeding can be invoked for actions leading to the disruption of Congress' certification of the 2020 presidential election results on Jan. 6.

The justices will consider a case brought by Joseph Fischer, who is seeking to have a criminal charge dismissed which claims that he obstructed an official proceeding — the certification of Joe Biden's election victory — along with the mob of Trump supporters who stormed the Capitol. 

Trump has been charged with the same offense in his federal election interference case, as have other individuals. The Supreme Court's involvement could provide Trump with additional grounds to seek a delay, potentially pushing back his federal court trial in Washington from its scheduled start date on March 4 until after the 2024 presidential election.

The court’s decision to review this issue is “significant” because it suggests that some justices may agree that the obstruction statute does not apply to the events of Jan. 6 efforts, former U.S. Attorney Barbara McQuade, a University of Michigan law professor, told Salon. 

A favorable decision for the defense could undermine the two counts in Trump's indictment based on “the same theory,” McQuade said. However, the other two counts, alleging conspiracy to defraud the United States and violation of voting rights, would not be affected. 

“Trump might attempt to leverage the court's examination of these other cases to request a trial delay, but this request is expected to face opposition,” she added,

Many of the Jan. 6 rioters have been tried using the same statute and it is the “main charge” in special counsel Jack Smith's prosecution of Trump, which makes the case “incredibly significant,” Laurie Levenson, a law professor at Loyola Marymount University, told Salon.

The issue at hand here, Levenson explained, is whether the certification of election results is an "official proceeding" under the statute, and what evidence is required to prove that the defendant acted "corruptly" in trying to stop it.

“If the Supreme Court holds against the government, it will make it extremely difficult to prove the heart of the case against Trump,” Levenson said.

Temidayo Aganga-Williams, white-collar partner at Selendy Gay Elsberg and former senior investigative counsel for the House Select Committee to Investigate the January 6th Attack, expanded further. 

The defendant in this case is challenging the government’s application of 18 U.S.C. 1512(c), which, in part, prohibits any efforts to “corruptly” obstruct, influence or impede an official proceeding, Aganga-Williams said. The government has interpreted this statute “more broadly” to apply to various forms of obstruction of “any official proceeding,” including the congressional certification that must happen by Jan. 6 following a presidential election. 

“Fischer contends that this statute applies just to actions taken toward tampering with or destruction of a document or record,” Aganga-Williams continued. “He points to the fact that the provision was enacted as part of the Sarbanes-Oxley Act of 2002, which was primarily aimed at white-collar crime.”

While one federal judge agreed with Fischer's narrower interpretation, the D.C. Circuit Court of Appeals — generally considered the second most powerful court in the country — ruled that the statute’s use of broad language supported the government’s interpretation, he added.

A straightforward interpretation of the law, coupled with the intent of Congress, implies a “broader interpretation,” David Schultz, professor of political science at Hamline University, told Salon. Congress aimed to criminalize a wide range of obstructive actions, extending beyond the “mere destruction” of documents and not confined to corporate entities. The law as written is a comprehensive obstruction of justice statute, he said.

Schultz cited the precedent of Arthur Andersen LLP v. U.S., a case that revolved around allegations of document shredding at the disgraced energy firm Enron and the accounting firm Arthur Andersen. As a result of problems interpreting and applying the obstruction statute in that case and “bad jury instructions,” Congress then revised the law. 

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“There is no indication that Congress should narrowly apply the law to document destruction only," Schultz said. It was meant to "have broader application to intentional efforts to obstruct justice and impede an official government investigation.” 

More recently, the government has used the revised statute to prosecute Jan. 6 rioters, Schultz explained. But in the current case, Fischer v. U.S., a dissenting lower court judge ruled that the Corporate Fraud Accountability Act of 2002 does not apply to alleged crimes beyond document destruction.  

Since Fischer’s case is not on an expedited schedule, it will likely take months for the court to hear oral arguments and issue a ruling, Aganga-Williams pointed out. With the Supreme Court’s current term continuing until next June, a final ruling will likely come well after Trump’s scheduled March 2024 trial. 

“I expect Trump will seek a delay of his trial to allow the Supreme Court time to rule on this issue, which impacts two of the four charges faced by the former president,” Aganga-Williams said. “Such a request for another delay would be part of Trump’s admitted plan to avoid seeing the inside of a courtroom until after the election. No court should allow him to succeed.”

If the Supreme Court were, in effect, to overturn hundreds of Jan. 6 convictions based on an interpretation of this law, that would enormously “disrupt” what Aganga-Williams called the Department of Justice’s “largest investigation in its history."

“It would snatch away accountability of so many that chose to violently attack the U.S. Capitol and undermine American democracy,” he continued. “It would also be a severe blow to holding accountable the person ultimately responsible for the attack on the Capitol — Donald Trump. It would be unsupported by a plain reading of the statute and, above all else, it would be a moral travesty.”