Supreme Court Hearing on January 6 Charges Offers New Hope for Trump and Hundreds of Defendants — and a Warning for Jack Smith

The special counsel, sensing possible defeat, offers a way to keep Trump in jeopardy even if the court clears the hundreds of rioters charged under Sarbanes Oxley.

Photo by Drew Angerer/Getty Images
Special Counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony counts against President Trump on August 1, 2023 at Washington, DC. Photo by Drew Angerer/Getty Images

The skepticism of the Supreme Court Tuesday in respect of using against the January 6 rioters a law intended to address financial shenanigans offers new hope for President Trump and 350 or so others being tried, or already convicted, for obstructing Congress on that fateful day.

Yet what glinted in the hearing before the high bench this morning was the possibility that even a ruling adverse for the Biden administration might not derail the prosecution of the 45th president. He could yet be sent to jail for as much as 20 years under the draconian law known as Sarbanes-Oxley.

Oral arguments in the case — known as Fischer v. United States — centered on Special Prosecutor Jack Smith’s decision to charge more than 350 January 6 defendants with violations of the Sarbanes-Oxley Act, which was signed into law in 2002 in the wake of the implosions of Enron and WorldCom. The law is intended to punish crooks for “corruptly obstructing, influencing, or impeding an official proceeding.” 

The Nine mulled whether a law that punishes anyone who “alters, destroys, mutilates, or conceals a record” is applicable to those who rioted at the Capitol, like Joseph Fischer, a police officer by trade. He pleaded guilty to multiple felonies, but contends that the Sarbanes-Oxley charges are instances of unlawful prosecutorial overreach. As his lawyer, Frederick William Ulrich, put it, that statute is “Enron-driven.”

The high court appeared open to that argument. Justice Clarence Thomas telegraphed that the government could be acting selectively, observing that “there have been many violent protests that have interfered with proceedings. Has the government applied this provision to other protests?” To that, Solicitor General Prelogar claimed that there has never been anything like January 6.

Justice Samuel Alito allowed that “what happened on Jan. 6 was very, very serious” but told General Prelogar that “we need to find out what are the outer reaches of this statute under your interpretation.” The solicitor general called one of the words at issue, “otherwise,” a “classic catchall.” Fischer’s counsel, though, finds it to be more of a “dragnet.” 

Even if the Nine dismiss the Sarbanes-Oxley charges against the January 6 defendants, Mr. Smith is likely to argue that they should stick against Mr. Trump, who did not himself set foot at the Capitol on January 6, 2021. Instead, the special counsel argues, he engaged in the kind of obstruction contemplated by the statute. Two of the four charges Mr. Trump faces are based on  Sarbanes-Oxley.

The relevant subsection mandates that someone is criminally culpable if “he 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.” The special counsel argues that the certification of the results of the 2020 election were such a proceeding.  

Mr. Smith’s accusation that Mr. Trump pursued a “conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified” could insulate the special counsel’s case from a Supreme Court ruling that upends the Department of Justice’s prosecution of the other defendants similarly charged.

The special counsel wrote to the court in a brief filed last week that Mr. Trump’s “efforts to use fraudulent electoral certifications rather than genuine ones at the Joint Session” mean that he is indictable however the justices rule. He adds: “Whether the Court interprets [that provision] consistently with a natural reading of its text or adopts the evidence-impairment gloss urged by the petitioner in Fischer, the Section 1512 charges in this case are valid.”  

Still, a loss for the government before the high court would be unwelcome news for Mr. Smith. Mr. Trump would likely move for the charges to be dismissed — first before Judge Tanya Chutkan, and then possibly before the United States Court of Appeals. That would entail further delays, potentially putting out of reach Mr. Smith’s aspiration for a trial before the election.

The New York Sun

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