The Supreme Court of the United States could indirectly intervene in the January 6th related charges against former President Donald J. Trump should it choose to hear the appeals of three January 6th protestors charged with “obstructing an official proceeding,” the same charge Trump faces.
According to NBC, the Justices of the Supreme Court are considering three appeals from defendants Joseph Fischer, Edward Lang, and Garret Miller. Initially, the court was to consider the cases during their regular weekly meeting on Friday, however, the death of retired Justice Sandra Day O’Connor resulted in the cancellation of that meeting. The case is likely to be considered on December 8th.
BREAKING: Reagan-appointed Supreme Court Justice, Sandra Day O’Connor, passes away at 93.
She was nominated in 1981 and described by Reagan as “truly a person for all seasons, possessing those unique qualities of temperament, fairness, intellectual capacity."
In 2018, O’Connor… pic.twitter.com/qHwWFrVdqQ
— TP Breaking Alerts (@tpbreaking) December 1, 2023
Fischer, Lang, and Miller are seeking to have the charge against them dismissed an over-extension of 18 U.S.C. 1512(c)(2), which establishes efforts to “corruptly” obstruct, influence or impede any official proceeding. The Justice Department under President Joe Biden has defined the term “official proceeding” to include meetings of Congress.
However, the law was created in 2002 under the Sarbanes-Oxley Act in the fallout of the Enron scandal and refers to the destruction of evidence, not an act of protest or even of rioting.
As Trump’s attorneys explained in his filing, the law was “enacted as part of the Sarbanes-Oxley Act of 2002 in response to the Enron scandal, to close a loophole in federal criminal law on evidence tampering. “Congress enacted § 1512(c)(2) as part of the Sarbanes-Oxley Act,” which “was prompted by the exposure of Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen
LLP, had systematically destroyed potentially incriminating documents.”
They cited, Fischer’s case when his attorneys wrote “The Enron prosecutions revealed a critical gap in the U.S. Code: The then current version of § 1512(b) prohibited a defendant from persuading another person to destroy records in connection with an investigation or other proceeding but imposed no liability on those who personally destroyed evidence.”
Trump’s attorneys conclude,
“Thus the indictment takes a statute directed at the destruction of records in accounting fraud and applies it to disputing the outcome of a Presidential election. This stretches the statutory language beyond any plausible mooring to its text, which violates the canons of avoidance, lenity, and restraint discussed above.”
Former federal prosecutor and professor at George Washington University Law School Randall Eliason told NBC News that should the case or cases be taken up by SCOTUS, Trump “could credibly ask to delay his trial until the case is resolved.” Such a delay may or may not push Trump’s trial beyond Election Day 2024. Eliason observed that if the Supreme Court does intervene the ruling would likely come before the end of June and then the trial could still come before November.
However, any delay in the Washington, D.C. trial is inherently in Trump’s benefit as he could simply have the charges against him dismissed should the trial be sufficiently delayed beyond his inauguration.
In August, when the indictment from Jack Smith came down, Trump wrote on Truth Social, “CRAZY! My political opponent has hit me with a barrage of weak lawsuits, including D.A., A.G., and others, which require massive amounts of my time & money to adjudicate. Resources that would have gone into Ads and Rallies, will now have to be spent fighting these Radical Left Thugs in numerous courts throughout the Country. I am leading in all Polls, including against Crooked Joe, but this is not a level playing field. It is Election Interference, & the Supreme Court must intercede. MAGA!”
These cases could give the majority conservative bench, the opportunity to make just such an intervention.