The justices will hear argument on April 16. The fate of the federal election-interference case hangs in the balance.
Donald Trump’s litigation calendar is starting to fill out. I’ll have more to say when time allows regarding yesterday’s pretrial developments in the Manhattan criminal prosecution of the former president in the hush-money case. For now, I just want to note that the Supreme Court has finally scheduled arguments in the Fischer obstruction case. Even though Trump is not a party to that case, it may end up being the most consequential one in terms of his 2024 bids to return to the White House and to avoid federal criminal liability prior to Election Day.
The justices have announced that oral argument will take place on April 16.
As I’ve previously explained (see, e.g., here), Fischer is the challenge brought by Capitol riot defendants to the Justice Department’s use of a controversial obstruction statute to prosecute them. The statute, Section 1512(c)(2), was designed to close a gap in the criminal law that made it difficult to prosecute people who shredded or otherwise manipulated evidence of financial crimes.
Stretching it beyond its original purpose, as federal prosecutors are wont to do (despite the Supreme Court’s occasional admonitions against that proclivity), the Biden Justice Department has used it repeatedly to charge rioters who stormed the Capitol (equating corrupt conduct intended to prevent a proceeding from taking place with the statute’s target of corrupt conduct intended to doctor or destroy evidence to be presented at a proceeding). In Trump’s case, the leap is even more stark: Biden Justice Department special counsel Jack Smith has applied Section 1512(c)(2) to target Trump’s allegedly corrupt reliance on the cockamamie legal theory that the vice president (Mike Pence at the time) had authority to invalidate or refuse to count state-certified electoral votes.
The Court had previously agreed to hear the Capitol riot defendants’ challenge. (The D.C. Circuit’s divided opinion in the case is here.) The April 16 argument date virtually assures that there will not be a decision in the case until late June.
As a practical matter, even though Trump is not a party in the Fischer case, Washington, D.C., federal district judge Tanya Chutkan cannot commence trial in the election-interference case until the Supreme Court provides guidance on how prosecutors may legitimately invoke Section 1512(c)(2). It is the most serious charge in the case against Trump, accounting for two of the four counts and 40 years of potential imprisonment. (That is the statutory maximum; after application of the federal guidelines, obstruction sentences have been much shorter than that, but it’s a serious offense that would surely call for a term of incarceration if the judge follows the guidelines.)
Trump’s highest hope is that the justices not only hold that the statute is not applicable to the conduct with which he has been charged, but that they go further: instructing, as they did last term in throwing out two political corruption convictions, that prosecutors are not at liberty to creatively stretch criminal statutes to cover conduct the statutes were not understood to reach when enacted. That would strengthen Trump’s contention that the fraud and civil-rights counts Smith has charged against him are also infirm.
Smith, of course, wants the Court to endorse the broad extension of the statute to any arguably “corrupt” conduct. At a minimum, he hopes the justices rule in a manner that does not require much, if any, pretrial tweaking of the indictment — to say nothing of a dramatic overhaul that might significantly delay the trial.
The Supreme Court obviously does not want to be immersed in cases that bear on 2024 electoral politics. Alas, it is unavoidable.