Supremes to Hear Argument Today on Obstruction Statute Key to J6 Cases . . . Including Trump’s

Donald Trump will be in a Manhattan courtroom again today, but the action of greatest consequence for him will be in a more stately courtroom 200 miles south, where the Supreme Court will consider a case in which Trump is not a party but on which his fate may hinge — at least insofar as concerns Biden Justice Department special counsel Jack Smith’s 2020 election-interference prosecution of the former president.

The justices will hear argument this morning in Fischer v. United States. The case involves the Justice Department’s controversial use of a federal obstruction statute, Section 1512(c)(2), against defendants charged in connection with the Capitol riot.

To repeat what I recently explained, the statute

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.

Continuing:

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.

In Manhattan, Trump will be sitting the second day of a laborious jury-selection process that may take a couple of weeks for a criminal case that is simply ridiculous (see Rich’s column yesterday). In Washington, the Supreme Court will be considering what, effectively, is the foundation of the momentous prosecution against Trump that the Biden Justice Department’s special counsel is hoping to push to trial before — and possibly even during and through — Election Day.