Opinion: The Supreme Court took a case that could upend a lot of January 6 prosecutions, but it won’t affect Trump

Opinion by Dennis Aftergut

(CNN) — On Wednesday, the Supreme Court announced it will hear a case, Fischer v. United States, that presents an important issue for those who laid siege to the US Capitol on January 6, 2021 — whether they were properly prosecuted under part of a federal obstruction law. Former President Donald Trump has been charged under the same statute.

The Justice Department has won convictions against 327 of those who breached the Capitol under that statute.

Those convictions could be at risk.

The first breathless news coverage of Wednesday’s Supreme Court action predicted that the ultimate decision, likely sometime before July, could “have a major impact on the criminal prosecution of Trump.” The New York Times’ headline might lead readers to the same conclusion: “Justices to Decide Scope of Obstruction Charge Central to Trump’s Jan. 6 Case.”

Let’s slow down. Though the issues in Fischer may sound as if they bear on the charges against Trump, Fischer’s case is almost certainly legally irrelevant to the former president.

The statute at issue is 18 USC §1512(c)(2), and particularly its second paragraph:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object … 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 … shall be fined … or imprisoned not more than 20 years, or both.

The question in this case is whether that second paragraph covers physical obstruction of a proceeding, like that of Fischer and others who invaded the Capitol, or whether it covers only forms of document tampering that interfere with an official proceeding’s integrity.

Fischer’s indictment charges him with having physically engaged with at least one law enforcement officer as he breached the Capitol and allegedly texted acquaintances that members of Congress “can’t vote if they can’t breathe … lol.”

But it’s unlikely in the extreme that there will be any effect on Trump, who was not at the Capitol on January 6. For just a brief moment, let’s wade into the legal weeds.

The decision depends on how the court interprets the word “otherwise” in 1512(c)(2). Does it mean that any obstruction of an official proceeding is criminal, or does it require interference “similar to” the acts described in section 1512(c)(1) — altering, destroying, mutilating or concealing records?

In Fischer’s case, US District Judge Carl Nichols took the latter view. In March 2022, he ruled that because Fischer’s alleged obstruction was not about tampering with evidence, the criminal charge against him for obstructing an official proceeding must be dismissed.

Last April, two of three judges of the US Court of Appeals for the DC Circuit disagreed with Nichols and restored the charge. Judge Greg Katsas, the third member of the appellate panel, agreed with Nichols’ conclusion and dissented.

Let’s acknowledge that the dissenting viewpoint is not frivolous. The fact that conservative jurists like Judges Katsas and Nichols, both appointed by then-President Trump, have reached those decisions, may signal which way the conservative Supreme Court majority will go.

Trump’s case, however, is different. Even if the Court rules that 1512(c)(2) criminalizes only acts that affect the integrity of evidence, the DC grand jury charged Trump with precisely such acts — orchestrating the fake elector scheme.

The indictment from last August alleges that Trump and his co-conspirators caused fake electors in seven states “to make and send fraudulent certificates to the Vice President and Congress that [the fake electors] were legitimate electors.” By any definition, participants in a scheme to falsify documents and mail them to Congress to achieve an unlawful end act to “affect the integrity … of evidence in an official proceeding.”

Federal prosecutors are responsible for advising grand juries on the law, and ensuring that charges are consistent with legal developments. When the grand jury indicted Trump last August, a stellar prosecutor like special counsel Jack Smith would have been following judicial decisions in January 6 prosecutions and would surely have known that Fischer’s case might be headed to the Supreme Court.

Do note one small, future wrinkle. Trump’s lawyers could argue that his actions were not “similar to” those described in section 1512(c)(1) in this super-narrow sense: Trump and his associates are accused of creating false documents, they did not “alter, destroy, mutilate, or conceal a record, document, or other object.”

Good luck with that! Even Nichols recognized that, under his interpretation, 1512(c)2 would include “false entries” in documents. That covers what the indictment against Trump alleges. Of course, he is innocent until proven guilty.

One can seldom predict with confidence how a Supreme Court case will come out, or what language a justice might include. Even so, the Supreme Court decision to hear Fischer’s case poses no serious danger to the DC grand jury’s careful indictment of Trump.

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