By The Supreme Court on Wednesday took up a challenge to a law used to charge hundreds of people in connection with the Jan. 6, 2021, Capitol riot, and which also has been levied against former president Donald Trump in his federal election obstruction case.
The decision came as the D.C. federal judge overseeing Trump’s trial said she would freeze those proceedings while a different issue is reviewed by higher courts. The twin developments cast fresh uncertainty over special counsel Jack Smith’s efforts to bring Trump to trial in early March. Delaying the case has been a key part of the former president’s legal strategy as he seeks a second term in the White House.
The justices will examine an appeals court ruling that said the government could prosecute Jan. 6 riot defendants charged under a federal law that makes it a crime to obstruct or impede an official proceeding — in this case, disruption of Congress’s formal certification of Joe Biden’s 2020 presidential victory. Scores of defendants already have been sentenced under the law.
Obstruction is also one of the four counts brought against Trump by Smith in connection with the former president’s attempts to block Biden’s win.
The Supreme Court’s decision to review the law could provide another avenue for Trump to attack the federal case against him. Simply accepting the case does not necessarily delay or hamper Trump’s prosecution. But if the Supreme Court rules the law does not apply to efforts to block the election results, that probably would invalidate at least one of the charges Trump faces. And a lower court could also decide to postpone Trump’s D.C. trial — scheduled to start March 4 — until the Supreme Court decides the challenge to the law.
The high court is unlikely to hear oral arguments in the case of the Jan. 6 riot defendant for months, and a decision might not come before late June, when the justices finish the work of their term.
Former federal prosecutor Mary McCord said there is no legal reason to slow the proceedings in District Court while the Supreme Court considers the applicability of the obstruction statute. If the high court eventually sides with the Jan. 6 defendants, she said, the former president could move to have obstruction-related charges dismissed — or vacated, if by that point he has been tried and convicted.
“There is no reason to wait on the trial,” said McCord, now executive director of the Institute for Constitutional Advocacy and Protection at Georgetown Law.
The justices are separately weighing Smith’s request to fast-track consideration of Trump’s claim he is immune from prosecution in the election obstruction case.
On Wednesday, the trial judge in that case agreed to suspend the schedule of pretrial hearings and filings while awaiting rulings on the immunity issue from a higher court.
Judge Tanya S. Chutkan did, however, note that her court orders limiting Trump’s public statements about the case, or dissemination of evidence, still stand while they wait for the appeal to play out.
The Trump campaign called Chutkan’s suspension of pretrial proceedings “a big win for the rule of law.”
“The American people, not the courts, should decide who becomes president, and they are supporting President Trump in historic numbers,” Trump spokesman Steven Cheung said in a statement.
The controversy over application of the obstruction law illustrates some of the uncertainties that accompany Trump’s federal case in D.C., which presents novel legal issues regarding presidential power, criminal conduct and government functions. He is charged with conspiring to defraud the United States, conspiring to obstruct an official proceeding, obstructing a congressional proceeding and conspiracy against rights — in this case “the right to vote, and to have one’s vote counted.”
It is one of four criminal cases Trump is facing. He was indicted in federal court in Florida, accused of mishandling classified documents after leaving office and obstructing government efforts to retrieve the material; in state court in Georgia over efforts to block Biden’s victory there; and in state court in New York, related to falsifying business records in connection to a hush money payment in the 2016 election.
At the same time, Trump is again seeking the White House and is the front-runner for the Republican nomination next year — setting up potential high-stakes clashes between his trials, the state-by-state nominating contests and November’s general election.
The case accepted by the justices on Wednesday concerns whether a law written in the wake of the Enron scandal, which involved document shredding by the company’s accountants, can be used to prosecute some of the Jan. 6 rioters. The Department of Justice said this month that 327 Jan. 6 defendants have been charged with obstruction of an official proceeding under the statute.
The Corporate Fraud Accountability Act of 2002 holds that anyone who “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” can be punished.
It is the word “otherwise” that has been important. Almost all the judges overseeing riot-related cases in federal court in D.C. have agreed with the government that rioters who sought to keep Congress from certifying Biden’s victory were otherwise obstructing that proceeding. But one, Judge Carl J. Nichols, ruled that otherwise could only refer to other kinds of document tampering.
The U.S. Court of Appeals for the D.C. Circuit disagreed in a split decision, and it is that ruling the Supreme Court will review.
Judge Florence Pan, writing for the majority, called Nichols’s ruling a “cramped, document-focused interpretation” that ignored the plain meaning of the words in the statute.
“We cannot assume, and think it unlikely, that Congress used expansive language to address such narrow concerns,” she wrote. “We must accept, and think it far more likely, that Congress said what it meant and meant what it said.”
Judge Justin Walker agreed with Pan that prosecutors could use the law to charge Jan. 6 rioters but disagreed with some of her reasoning.
Defense attorneys argued that such a broad reading would put many otherwise law-abiding activists at risk of lengthy felony sentences, and Judge Gregory Katsas agreed with that position.
While the riot involved “extreme conduct” not protected by the First Amendment, Katsas wrote, under this interpretation of the law a “peaceful protestor in the Senate gallery” could be convicted of a felony for trespassing while exercising free speech rights. Katsas argued that the law can apply beyond documents but only to people who “hinder the flow of truthful evidence to a proceeding.”
Pan was nominated by Biden. Nichols, the trial judge, was nominated by Trump, as were Walker and Katsas.
The case accepted by the Supreme Court concerns Jan. 6 defendant Joseph Fischer, an off-duty Pennsylvania police officer who lawyers say spent only four minutes inside the Capitol that day. Fischer, whose challenge of the law has delayed his trial, also faces other charges.
In asking the court to accept his case, his lawyers said “with hundreds of cases awaiting trial and others on direct review, this court’s clarification of the scope of [the federal law] and the required mental state for a violation of the statute would provide critical guidance to district courts, prosecutors, and defense counsel.”
U.S. Solicitor General Elizabeth B. Prelogar urged the high court not to take the case, saying the D.C. Circuit’s opinion was correct that the law prohibits behavior beyond destroying documents.
It is “natural to say that a defendant obstructs an official proceeding by physically blocking it from occurring — as happened here when petitioners and others violently occupied the Capitol for several hours and thereby prevented the joint session of Congress from doing its work,” she said in a brief to the court.
The case is Fischer v. U.S.
Spencer S. Hsu and Ann E. Marimow contributed to this report.