Trump won’t get a break from the Supreme Court — yet
This week the nation got its first glimpse of Donald Trump as a criminal defendant as he appeared at his New York trial, accused of falsifying business records to conceal hush money payments in an effort to silence allegations of an affair with an adult film star before the 2016 presidential election.
But as he sat, stewed, nodded off, and was admonished by the judge for mouthing off during jury selection in New York, the US Supreme Court mulled a different case that has the potential to wipe out some of the most serious charges Trump faces from special counsel Jack Smith’s federal indictment.
The high court is considering whether a charge hundreds of Jan. 6 rioters face, carrying with it a penalty of up to 20 years in prison, should be tossed out. Trump faces the same charge in his federal indictment for his action in connection with the attempted coup in 2021. But based on comments made by the justices during oral arguments, it seems unlikely that Trump will get a break — even if the rioters do.
The justices considered whether the law criminalizing obstruction of an official proceeding, passed in the wake of the Enron accounting fraud scandal, applies to those who stormed the Capitol building. The law closed a legal loophole to ensure third-party actors, such as Enron’s outside auditor Arthur Andersen, could still face charges for their role in thwarting the efforts of federal investigators and prosecutors.
Not only does the law criminalize destroying or concealing a government record, it also applies to anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so” — a catchall phrase clearly meant to close any other loopholes the wording of the law missed.
That “otherwise” clause is the basis for the charges against those who violently breached the Capitol. Joseph Fischer,
a former police officer from Pennsylvania — not to be confused with fellow Jan. 6 participant and former
Boston police officer Joseph Fisher who pleaded guilty to federal charges in February — asked the Supreme Court to throw out the charge against him because the law was meant to penalize obstruction of federal investigations or evidence.
He claims that his actions while in the Capitol building, during which he allegedly assaulted a Capitol Police officer, don’t fall under the law’s meaning.
The Justice Department disagrees, saying that Fischer and other charged rioters entered the Capitol with the intent of stopping the presidential election count, which was an official proceeding under the plain language of the law.
The justices seemed split on that question. But based on their exchanges with the attorneys arguing the case, it seems clear that the actions Trump is accused of — particularly his role in the scheme to create fake slates of electors to send to Washington — fit the charge to a T.
Trump wasn’t mentioned by name during the argument. But it seemed clear that his charges were on the mind of Justice Amy Coney Barrett, a Trump appointee, when she asked whether the charge would apply to a defendant who tried “to obstruct evidence because he was trying to obstruct the arrival of the (electoral) certificates to the vice president’s desk for counting.”
Joseph Green, the attorney arguing on Fischer’s behalf, replied that his client’s actions were very different from “actually changing a document or altering a document or creating a fake new document.”
Funny — that is exactly what Trump is accused of. Trump may demand loyalty from his supporters, but Fischer’s lawyer was quick to throw Trump under the legal bus to protect his client.
And he has good reason. Charging the rioters under this statute is novel, but charging Trump for his actions in pressuring state officials not to certify the election results, trying to “find” additional votes in his favor, and creating a slate of phony electors in an effort to overturn the will of voters is not. The Justice Department has brought — and won — the same types of charges against those who hid, falsified, and destroyed documents that were a part of an official federal process, as US Solicitor General Elizabeth Prelogar told the justices. Jack Smith knew exactly what he was doing when he chose this charge among others to include in Trump’s indictment.
Trying to stop the count by violent force, as the Jan. 6 rioters did, should also pass muster. And if the court finds otherwise, that would be an affront to the rule of law. We’ll soon see if the justices agree. But when it comes to Trump’s charges, it seems the justices see things clearly. Here’s hoping that vision also holds next week, when they take up Trump’s inane immunity argument.
Charging the rioters under this statute is novel, but charging Trump for his actions in pressuring state officials not to certify the election results, trying to “find” additional votes in his favor, and creating a slate of phony electors in an effort to overturn the will of voters is not.