This SCOTUS Case May Upend January 6th and Trump Prosecutions
A Novel Legal Theory Pursued by Jack Smith
Jack Smith and January 6th prosecutors elected to pursue a novel theory in the prosecution of January 6th Defendants and former President Donald Trump.
Instead of charging insurrection or other heinous charges they opted to utilize a more vague statute born from prior Enron prosecutions. This prevented Smith and his counterparts from proving insurrection in favor or a lesser burden - mere obstruction.
The problem for Jack Smith?
A fishy prior Supreme Court case - Yates v. United States involving the dumping of grouper and the odd bedfellows it created. More on that in a min.
The Fischer Case
Joseph Fischer was indicted on seven charges for his role in Washington in the January 6th Capitol attack. In addition to storming the Capitol prosecutors alleged that he assaulted the police as Congress met to determine if President Biden won the 2020 election. Like hundreds of other Capitol protesters that day, Fischer was charged with the obstruction count codified in 18 U.S.C. 1512.
This law was originally passed as part of the Sarbanes-Oxley Act of 2002 which was a statute enacted after the prosecutions in Enron to prevent criminal actors from destroying evidence of criminal activity in an official investigation.
I write extensively about this law and the Enron prosecutions in my book: Unraveling Federal Criminal Investigations.
Yates v. United States
John Yates, a smalltime Florida fisherman, was prosecuted under the Enron era statute for allegedly destroying Grouper that were potential evidence in an illegal fishing case. In overturning his conviction Justices Sotomayor, Ginsburg, Roberts, and Breyer determined that Grouper were not the types of tangible objects that are implicated in the obstruction statute.
Kagan, Scalia, Thomas and Kennedy dissented but not because the statute doesn’t require a tangible object. They dissented precisely because they believe a fish is a tangible object and sufficient to trigger the statute.
Kagan famously cited Dr. Seuss in her dissenting opinion “one fish, two fish, red fish, blue fish”. It was odd but it happened and now when we talk about Yates we are required to mention it.
The upshot for Trump and nearly 500 January 6th defendants, even the liberal minority of Supreme Court Justices see 1519 as requiring a “tangible object” and were reluctant to construe the statute broadly. The same logic will apply to the similarly worded 1512(c).
Fischer’s Path to SCOTUS
Fischer preserved the issue by seeking dismissal of the section of the indictment that alleged that he interfered with an official proceeding.
Judge Carl J. Nichols of the Federal District court in Washington granted Fischer’s motion to dismiss. In his ruling he opined “the law required defendants to take some action with respect to a document, record or other object”. This was based off of Supreme Court precedent in several notable Supreme Court cases challenging this statute namely Yates v. United States.
He based his opinion on his prior decision in United States v. Miller, 589 F. Supp. 3d 60 (D.D.C. 2022).
Judge Nichols is absolutely correct, the Yates case is abundantly clear - the obstruction must relate to a tangible object.
This isn’t even a close question. The act specifically criminalizes the destruction of a tangible object.
(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.
18 U.S.C. § 1512(c)(2)
The government interprets the word “otherwise” in section II as some sort of catch all expanding the statute to include other unenumerated acts of “obstruction”. The issue with this interpretation is that this simply isn’t the way the law works.
The 2-1 D.C. Circuit Opinion
The D.C. Circuit lead opinion departed from Judge Nichols but conceded that there was no precedent for applying this statute to conduct unrelated to the destruction or alteration of a tangible document. Other judges weren’t so stedfast in their blind support for the Government’s view with Judge Walker authoring a concurring opinion that conceded Judge Pan (the lead opinion author) did not do enough to uphold the indictment.
Judge Katsas authored a spirited dissent. And with a tie score - we head to Supreme Court review.
Why Fischer Will Succeed
SCOTUS’s current posture is to aggressively roll back government expansion. Jack Smith’s fight is another iteration of the Government’s efforts to continue its expansion of executive power utilizing the momentum of public disgust in an effort to alienate the Court from the people while also expanding federal statutes and prosecutorial discretion.
Jan 6th was a perfect opportunity to leverage the shock of a raid on the Capitol to increase DOJ power. Their use of Sarbanes Only and obstruction statutes and their effort to interpret them broadly so that nearly any conduct that interferes with government can be construed as a felony is abundantly clear.
The problem for Jack Smith is that the SCOTUS looks with a larger lens. It looks beyond the immediate power struggles and looks towards the future to see how its opinions will shape the United States in the next 20 or 50 or maybe even 100 years.
But for that lens Brown v. Board would go another way, a conservative justice would not have authored an affirmative action decision (Bollinger, Gratz).
This lens requires the Justices who actually care about this country to strike down the use of a statute that broadly permits the expansive use of an obstruction of justice statute to cover a rioter in a capitol building. This is important for all Americans not just the 500 defendants who are in jeopardy as a result of January 6th.
Its important that our laws are clear and specific and its important that prosecutors strictly apply them instead of seeking to expand a law beyond congressional intent.
Over 500 convictions are at stake in the upcoming Supreme Court case of Fischer v. United States.
Where do We Go from Here
Trump will not proceed to trial in March.
SCOTUS will hear argument in April and won’t issue its decision until June at the earliest. Jack Smith and Trump’s cert petitions on the similar issue are currently up with SCOTUS but I believe they will likely be held pending the outcome in Fischer which means SCOTUS won’t fast track Smith’s request to be heard.
Many think Smith is playing expertly here but in light of the Fischer petition - I assess that he is desperately trying to save a novel theory by forcing the Court’s hand to decide for before prosecution Trump and cause public outrage. However, thanks to Fischer the Court has an out where it can do what it loves to do best - indirectly resolve a hot issue before it by deciding a less public case.
The result, Trump cannot be convicted of obstruction - all eyes on Georgia.