The Supreme Court on Wednesday accepted to analyze a case that could call into question the prosecution of hundreds of rioters who stormed the Capitol on January 6, 2021, and potentially delay or limit the scope of the trial of former President Donald Trump on federal charges of trying to overturn his electoral defeat.
At issue is whether the government can charge defendants in these cases under a federal law that criminalizes corruptly obstructing an official proceeding. The law is central to the prosecutions of many Trump supporters who, in 2020, attempted to block the certification of Joe Biden’s victory in Congress. It is also a key part of the federal process accusing Trump of conspiring to stay in power despite the will of the voters.
The decision to accept the case will complicate and possibly delay the start of Trump’s trial, which is currently scheduled to take place in Washington in March. The Supreme Court’s final ruling, which may not come until June, is likely to address the viability of two major charges against Trump. It could seriously hinder the efforts of special prosecutor Jack Smith to hold the former president accountable for the violence unleashed by his supporters at the Capitol.
The court’s eventual decision could also invalidate the convictions that have already been handed down against dozens of Trump supporters who participated in the assault. This would be a major blow to the government’s charges in the January 6 riots.
The case that the court accepted involves Joseph Fischer, who is charged with seven counts for his involvement in the attack on the Capitol. Prosecutors claim that he assaulted the police while Congress was meeting to certify the results of the 2020 elections. Like hundreds of other rioters whose actions disrupted the certification process at the Capitol, Fischer was charged with obstruction, formally known as 18 USC 1512.
Fischer requested the dismissal of part of the obstruction charge, which was passed as part of the Sarbanes-Oxley Act in 2002, a measure primarily aimed at white-collar crimes. Prosecutors have routinely used the obstruction charge, instead of more controversial charges such as insurrection or seditious conspiracy, to describe how pro-Trump mob members disrupted the peaceful transfer of presidential power.
Last year, Judge Carl J. Nichols of the Federal District Court in Washington granted Fischer’s request for dismissal, stating that the law required defendants to take “some action with respect to a document, record, or other object,” which he believed was lacking in Fischer’s conduct at the Capitol.
A divided panel of three judges from the US Court of Appeals for the District of Columbia Circuit ultimately reversed Judge Nichols’ decision, ruling that the law “applies to all forms of corruptly obstructing an official proceeding.” Three defendants from January 6, including Fischer, eventually asked the Supreme Court to decide whether the law had been correctly applied in the Capitol case.
The obstruction charge has never been an easy fit in the cases stemming from the Capitol assault. When it was passed in the early 2000s, the law was intended to curb corporate malfeasance by prohibiting things like destruction of documents or witness tampering.
Defense lawyers representing the January 6 rioters have argued that federal prosecutors have overly broadened its scope to encompass the violence that erupted at the Capitol and interfered with the process by which lawmakers gathered to certify the election results.
The lawyers also disagreed with the use of the obstruction charge against individuals who stormed the Capitol, arguing that many were not acting “corruptly,” as the law requires, because they believed they were protesting against a stolen election.
“The law has been overused to criminalize the January 6 cases,” said Norm Pattis, lawyer for Jake Lang, one of the three defendants who appealed to the Supreme Court. “Congress never intended that.”
Pattis said the court’s review was “significant” in hundreds of criminal cases stemming from the Capitol riot and was “another reason to delay the 2024 case against Donald Trump.”
Two of the four charges in the federal indictment of election interference against Trump are based on the obstruction charge. He is accused of personally obstructing the certification process at the Capitol on January 6 and also faces a charge of conspiring with others to obstruct the process.
The court’s review, although potentially damaging to the prosecution, would not affect the other two charges against Trump. One accuses him of conspiring to defraud the United States by falsely claiming the election was stolen in an effort to reverse his defeat. The other accuses him of conspiring to deprive millions of Americans of their right to have their votes counted.
However, if the Supreme Court determines that the obstruction law does not apply to the mob attack on the Capitol, it could derail Smith’s plans to hold Trump accountable for the violence.
Recent court documents in the election case have clearly suggested that prosecutors planned to use the obstruction charge to show the jury graphic videos of the Capitol attack and possibly introduce testimony from rioters claiming they stormed the building following Trump’s instructions.
The possibility of the court reviewing—and potentially invalidating—the obstruction charge has hung over the Trump election case for months. But the recent decision came at a particularly delicate time, just two days after Smith asked the judges to expedite the appeal of Trump’s various attempts to dismiss the case based on claims of presidential immunity.
While the Supreme Court has not yet decided whether it will consider Trump’s immunity arguments, it has become deeply involved in the election interference proceeding in just one week. Its decisions on the obstruction charge and immunity could radically alter the shape, scope, and timeline of the case, which has long seemed to be the first of four charges Trump would face.
Attorney General Elizabeth Prelogar had urged the judges to deny the review of the case, arguing that the law was broad enough to encompass Fischer’s actions even if no documents or objects were affected.
“An accused obstructs an official proceeding by physically preventing it from taking place, as occurred here when the plaintiffs and others violently occupied the Capitol for several hours, thus preventing the joint session of Congress from doing its work,” she wrote.
She added that, in any case, lawmakers themselves were the documents.
“Preventing members of Congress from validating state certifications thus constitutes obstruction focused on the evidence,” she wrote, adding that the review was premature. “At a minimum, the government should be allowed to present its case to a jury and demonstrate that petitioners obstructed a proceeding by (partly) preventing decision-makers from seeing evidence at the time and place specified for that purpose.”
Regardless of the Supreme Court’s final ruling, Trump’s lawyers are likely to use the decision to review the obstruction charge to bolster their arguments for delaying the trial in Washington, perhaps until after the 2024 presidential campaign.
Since the start of the case, Trump has pursued a persistent strategy of delay. If he can postpone the trial until after the elections and win the contest, he would be in a position to simply order the charges against him to be dropped.
Alan Feuer covers extremism and political violence for the Times, focusing on criminal cases related to the January 6 attack on the Capitol…