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Why SCOTUS Will Likely Smack Down Two Of Jack Smith’s Get-Trump Charges As Non-Crimes

As the Fischer case may soon prove, the convictions the special counsel seeks could be for crimes that don’t exist.


Last week, the Supreme Court rejected Special Counsel Jack Smith’s request that the high court fast-track an appeal by former President Donald Trump claiming immunity from the charges related to the violence at the Capitol on Jan. 6, 2021. While the immunity questions will likely return to the Supreme Court after the D.C. Circuit weighs in on the issues, before then the justices will consider the validity of two of the four charges levied against the former president — and it is likely a majority of the Supreme Court will rule that the “crimes” the special counsel charged are not crimes at all. Here’s your lawsplainer.

Smith charged Trump in a four-count indictment in a federal court in D.C., seeking to hold the former president and 2024 GOP front-runner criminally responsible for the events of Jan. 6, 2021. Specifically, the indictment charged Trump with conspiracy to defraud the United States, conspiracy against rights, conspiracy to obstruct an official proceeding, and obstruction of and attempt to obstruct an official proceeding.

While all four theories of criminal liability are weak, the Supreme Court will soon decide whether the events of Jan. 6 qualify as criminal obstruction of an official proceeding under Section 1512 of the federal criminal code in United States v. Fischer

Earlier this month, the Supreme Court agreed to hear Joseph Fischer’s appeal that presents the question of whether 18 U.S.C. § 1512(c) criminalizes acts unrelated to investigations and evidence that obstructs an “official proceeding.” Fischer, like Trump, was charged with violating § 1512(c) by engaging in conduct on Jan. 6 that obstructed the certification of the electoral vote. 

The question for the Supreme Court in the Fischer case is one of statutory interpretation. Thus to understand the issue requires a detailed study of the specific language of § 1512(c). That section, titled “Witness, Victim, or Informant Tampering,” provides:

(c) Whoever corruptly — 

(1) 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; or 

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, 

shall be fined under this title or imprisoned not more than 20 years, or both.

Fischer and Trump, as well as scores of other Jan. 6 defendants, were charged with violating subsection 2 of § 1512(c) by “otherwise” obstructing or impeding the certification of the electoral vote. In Fischer’s case, he asked the trial court to dismiss the § 1512(c) charge, arguing the statute only criminalized conduct that rendered evidence unavailable to an “official proceeding.” The district court agreed and dismissed the § 1512(c) count against Fischer. The government appealed to the D.C. Circuit Court of Appeals, which in a 2-1 decision reversed the lower court, with the two-judge majority holding that § 1512(c) criminalized any conduct that obstructed or impeded an official proceeding, whether that conduct impaired the availability of evidence or not, leading the Supreme Court to grant certiorari.

While forecasting the outcome of an appeal from the Supreme Court always leaves room for error, for several reasons the high court seems likely to hold that § 1512(c) does not reach the conduct of Fischer, Trump, or other Jan. 6 defendants. Most predictive is the Supreme Court’s earlier decision in the case Begay v. United States, which interpreted another statute that, like § 1512(c), used an “otherwise” catchall clause.

In Begay, the question before the court was the meaning of a section of the Armed Career Criminal Act that imposed a heightened punishment for individuals with three or more prior convictions for violent felonies or serious drug offenses. The act defined a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another” (emphasis added).

The majority in Begay held the defendant’s prior felony DUI conviction did not constitute a “violent felony” under the “otherwise” language of the statute because “the provision’s listed examples — burglary, arson, extortion, or crimes involving the use of explosives — illustrate the kinds of crimes that fall within the statute’s scope,” and “their presence indicates that the statute covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’”

In reaching this conclusion, the Begay court stressed that in interpreting statutes, courts must seek “to give effect … to every clause and word” of the statute. The majority further reasoned that if the “otherwise” language meant to cover all crimes that present a “serious potential risk of physical injury,” there would have been no reason for Congress to have included the examples.

The holding and reasoning underlying the Begay decision should compel a similar conclusion in the Fischer case, namely that subsection 2 of § 1512(c) only criminalizes conduct that “otherwise” obstructs an “official proceeding” if the conduct charged is similar to the conduct covered by subsection 1. After all, if Congress sought to criminalize any conduct impairing an official proceeding, why then would subsection 1 be needed?

The conduct prohibited by subsection 1 of § 1512(c) all concerns the impairment of evidence for an official proceeding, by criminalizing the alteration, destruction, mutilation, or concealment of “a record, document, or other object…” Thus, under Begay’s reasoning, to constitute a crime under subsection 2 of § 1512(c), the indictment must charge that Fischer (or the other defendants) “otherwise” impaired evidence for use in an official proceeding. 

Nowhere in the indictment returned against Fischer is there an allegation that he somehow impaired evidence relevant to an official proceeding. So if the Supreme Court follows the reasoning of Begay, as a matter of law, then Fischer did not violate § 1512(c), and that charge against him should be dismissed. Likewise, the § 1512(c) charge against Trump, which also did not allege an impairment of evidence, would fail, as would the second count alleging Trump conspired to violate that statute. 

With the Supreme Court deciding the Fischer appeal this term, the reasonable response would be for Smith to put the brakes on the criminal trial against Trump to await a ruling from the high court. The special counsel and the district court, however, have both proven themselves anything but reasonable and have revealed their real goal is to obtain a conviction against Trump before the 2024 election, which is now less than one year away.

But as the Fischer case may soon prove, the convictions Smith seeks may be for crimes that don’t exist. Sadly, half the country doesn’t seem to care.

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