The Supreme Court goes fishing

The Supreme Court today agreed to hear an appeal by a Jan. 6 defendant on the scope of the charge against him for obstructing an official government proceeding.  Many if not most Jan. 6 defendants were charged under the same law, 18 U.S.C. § 1512(c), which makes it illegal to corruptly obstruct, delay, impede or influence any official proceeding.  The charge against Jan. 6 defendants, nearly all of whom have been found guilty of violating the statute, relates to their attempts to delay or stop altogether the counting and certification of electoral ballots by the Congress on Jan. 6. 

The Congressional proceeding to accomplish its duties under the Electoral Count Act and the Constitution was delayed on Jan. 6, as both houses of Congress, the House of Representatives and the Senate were forced to go into recess during their separate certification of ballots due to the mob that threatened to overrun both chambers.  The Senate chamber was occupied by Trump supporters, but the House chamber, protected by armed guards, was not successfully invaded and occupied.

Joseph Fischer isn’t just any Jan. 6 defendant.  According to the charges brought against him by the Department of Justice, he urged fellow rioters to “charge” and “hold the line” during the assault on the Capitol.  He also entered the Capitol building, yet another illegal act on Jan. 6.  In texts he sent to other rioters, Fischer claimed he was going “to war” to send “democratic Congress to the gallows.”  Members of Congress, Fischer texted, “Can’t vote if they can’t breathe ... lol.” Which sounds a lot like threatening the lives of members of Congress in the Democratic Party.

The fact that the Supreme Court agreed to hear the appeal by Joseph Fischer, a former police officer who is also charged with having “a physical encounter” with a Capitol Police officer, is significant because the obstruction statute at issue is one of the four laws Donald Trump is charged with having broken on Jan. 6 and before.  Trump’s lawyers will no doubt seek a delay in his trial date while the Supreme Court hears arguments and decides the appeal by Fischer.

Trump faces charges under both 18 U.S.C. § 1512(c) and 18 U.S.C § 1512 (k), which is a conspiracy charge related to the other 1512 count.  Charges against Trump under both statutes could be affected if the Supreme Court decides that they do not apply to the actions taken on Jan. 6 that resulted in the disruption of the counting and certification of electoral ballots.

Trump faces two other charges that would not be affected by this Supreme Court challenge.  He is charged under 18 U.S.C. § 371, which makes it illegal for any two people to conspire to commit an offense against the United States or defraud the United States.  The Supreme Court has previously defined “defraud” as “any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.”  The department of government in this case would be the Congress.

Trump also faces charges under 18 U.S.C. § 241, which makes it illegal for “two or more persons [to] conspire to injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”   The right under the Constitution Trump is charged with threatening under this statute was the right of all citizens to vote and have their votes accurately counted.  Interfering with the counting and certification of electoral ballots, awarded to candidates voted for in an election, would apply in this statute.

Another reason cited by the Supreme Court to take the appeal is to determine whether the actions taken by Fischer were “corrupt.”  Assaulting the Congress on Jan. 6 may sound like it would be “corrupt” on its face, but there are variations in how the court has defined “corrupt” in the past.  One definition requires only that an action be “wrongful, immoral, depraved, or evil.”  A second definition requires that an action be taken with “corrupt purpose or through independently corrupt means, or both.”  Yet a third definition requires that the conduct must result in “financial gain or other benefit to oneself or a benefit of another person.”  Again, the attack on the Capitol, or Trump’s actions would appear to “benefit” Trump in his goal to overturn the results of the 2024 election.  But that’s the problem with the Supreme Court in general, and this Supreme Court in particular.

They could choose to define “benefit” or “actions” or even “corrupt purpose” any way they want, and one or more definitions might be used to exclude Fischer’s and Trump’s conduct. 

The main question is, why did the Supreme Court take this case in the first place?  The Justice Department has pointed out that the defendant making the appeal, and two others who signed on to the same appeal, have not gone to trial on the charges against them for obstruction.  The Supreme Court could have taken up a case challenging the obstruction charge after the defendants are found guilty.  That the court did not wait until this eventuality suggests that they were fishing for a case that might affect the charges against Trump.  Or maybe not.  Maybe they’re just so worried about the rights of Joseph Fischer, who advocated taking Democratic members of Congress to the “gallows,” that they just had to decide on his rights under the law right now.

Under the Supreme Court’s normal rules in this case, which was not filed under the expedited conditions as the Special Counsel’s filing for certiorari earlier this week, means that the court will schedule submissions of briefs and oral arguments for sometime early in 2024 and may not issue a decision until June.

Meanwhile, Trump will be campaigning on his lie that the entire case against him was ordered by Joe Biden – which it wasn’t – and that the case is election interference – which it is not.

So here we go, folks. Yet another instance in which the future of our democracy is in the hands of a very conservative Supreme Court, on which sits a Justice whose wife was intimately involved in trying to influence what happened on Jan. 6, and who will no doubt refuse to recuse himself.

All of which means our votes next November will be more important than ever.