President Trump’s motion for Judge Tanya Chutkan to dismiss two of the four charges handed up against him in respect of January 6 could further stymie Special Counsel Jack Smith’s push to convict the 45th president for election interference — and put him behind bars for two decades. 

The motion to dismiss comes as Trump’s lawyers craft their response to the special counsel’s 165-page immunity opus. That riposte is due by October 17, and the former president is expected to argue that he is protected from prosecution by the Supreme Court’s ruling in Trump v. United States that official presidential acts are presumptively immune. 

Now the 45th president, in his effort to best the election interference charges, is invoking another high court decision from last term. In Fischer v. United States, the justices ruled that convicting on a felony charge of obstructing an official proceeding required that a defendant “impaired the availability or integrity” of records, documents, or other objects used in an official proceeding.

The 6-to-3 decision authored by Chief Justice Roberts limited the government’s ability to use the statute, which was passed as part of the Sarbanes-Oxley Act intended to curb financial fraud in the wake of the implosions of Enron and WorldCom. It became a favorite of prosecutors tasked with prosecuting defendants for January 6. Prosecutors were likely attracted to the 20-year maximum prison sentence Congress ordained.

So enamored of this statute were prosecutors that they charged 259 defendants — including Trump — with violating it, even though the alleged actions appear at first blush to bear little resemblance to the activities of crooked accountants and auditors. The government argued that the statute fit because the rioters intended to disrupt an official proceeding: the certification of the vote by Vice President Pence on January 6, 2021.

The conservative justices — joined by Justice Ketanji Brown Jackson — were unconvinced, and demanded a tighter nexus between obstruction and interference with documents. Now Trump accuses Mr. Smith of stretching “generally applicable statutes beyond their breaking point based on false claims that President Trump is somehow responsible for events at the Capitol.”

The former president contends that the special counsel “seeks to assign blame for events President Trump did not control and took action to protect against.” He argues that the ruling in Fischer mandates that Judge Chutkan “reject lawfare overreach targeting President Trump.” Instead, the motion to dismiss maintains that Trump merely “expressed sincere and valid concerns about the integrity of the 2020 election pursuant to his authority as the Chief Executive.”

Mr. Smith’s position is that of all the January 6 defendants, the obstruction charges fit Trump best because he was not physically present at the Capitol, and his efforts to reverse the election’s result possessed a documentary dimension. Trump retorts that the prosecutor has failed to “sufficiently allege that President Trump impaired, or intended to impair, the integrity or availability of any document or other object used in any official proceeding.”

Trump spotlights the high court’s ruling that the obstruction statute cannot be “unbounded” and a “catchall provision that reaches far beyond the document shredding and similar scenarios that prompted the legislation in the first place.” The 45th president’s case, his lawyers assert, “should be among the next to be abandoned and, if not, then it should be dismissed.”

In a statement, the Department of Justice discloses that the “government continues to review the cases of the approximately 259 defendants who, at the time Fischer was decided, were charged with or convicted of violating” the Sarbanes-Oxley provision. It claims that “even if the government foregoes this charge, every charged defendant will continue to face exposure to other criminal charges.” Trump is also charged with conspiracy and depriving Americans of the right to have their votes counted.

Trump notes that Mr. Smith “makes no allegation that the documents” relating to certification of the vote “were stolen, harmed, damaged, or concealed in any way.” He adds that the “certificates remained under official control at all times, available for use—and in fact used—during the certification proceeding.” The 45th president reasons that the “documents were simply moved by functionaries from one room to another until Congress reconvened” after the riot. 

The Supreme Court in Trump ruled, “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President.” 

That means that even if Mr. Smith prevails on the obstruction charge, the broad grant of presidential immunity — a shield possessed by no other January 6 defendant — could protect Trump from going to trial on this charge, or any other in this case.