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‘Sleeping Giant’ Case Could Upend Jack Smith’s Prosecution of Trump

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OPINION: This article may contain commentary which reflects the author's opinion.


All eyes are on the 2024 presidential campaign and the indictment of former President Donald Trump on charges related to Jan. 6th, as well as the impending decision of the U.S. Supreme Court on Trump’s request for immunity from prosecution for acts taken while president.

Even more probable than the immunity issue to affect Special Counsel Jack Smith’s prosecution of Trump is a dormant behemoth of a case that is brewing in the Supreme Court.

Joseph W. Fischer v. United States is the case that the court agreed to hear in December; it makes no direct reference to Trump. Joe Fischer, a defendant who was charged on January 6, is at issue here, and the question at hand is whether or not the DOJ and prosecutors have been abusing a law passed in 2002 to punish financial crimes. If the court rules in favor of Fischer, it will cast doubt on the applicability of the law to other defendants connected to the events of January 6th, including Trump.

There are four counts total in Smith’s indictment. That includes two counts of conspiracy to obstruct an official proceeding and one count of actual obstruction. The Sarbanes-Oxley (or “SOX”) Act, passed in the wake of the Enron corporate accounting scandal, makes it a felony to obstruct a U.S. government official proceeding and governs financial disclosures.

These offenses are part of that act. According to this statute, more than 300 people have so far faced charges of involvement in the Jan. 6 insurrection; over 150 of them have either pleaded guilty or received jury verdicts of guilt.

A number of the defendants, including Fischer, have said that the “obstruction of an official proceeding” part of the SOX Act was only meant to apply to financial crimes like the ones that led to its creation, not as broadly as the Justice Department has used it in the January 6th cases, Politico noted.

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Whether the obstruction provisions of the SOX Act apply to the different ways in which individuals attempted to prevent Congress from investigating and approving the Joe Biden-favored presidential election results is an issue that courts around the nation have already been pondering. As of this month, the DOJ’s interpretation had the support of fourteen judges in twenty-two cases.

However, following the Supreme Court’s decision to consider Fischer’s case, some have voiced their reservations. Additionally, trial judges have postponed the sentencing of the defendants in two of the cases from January 6th in anticipation of the Supreme Court’s decision, which could leave the underlying SOX Act charges open to challenge.

If the Supreme Court were to dismiss half of Smith’s counts against Trump before it concludes its term in June, we might not know how Fischer affected the January 6 trial. It may also cast doubt on the convictions of numerous insurgents serving time for their roles on January 6.

Several conservative justices on the Supreme Court identify as “textualists” who read laws literally; to one such reader, the SOX Act would probably appear simple.

It was also President George W. Bush who, in 2002, lauded “strengthening laws that criminalize document shredding and other forms of obstruction of justice,” referring to the statute in a White House press release.

The term “official proceeding” is further defined in another statute to encompass “a proceeding before the Congress.”

Therefore, the following legal equation would seem to be straightforward: The official process of tallying the presidential electorate’s votes following the Constitution and the Electoral Count Act began on January 6th in Congress.

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In this context, corruption, meaning that Trump knew what he was doing and had an illegal purpose, refers to the many steps he took to obstruct that process.

And this is where things get tricky. Someone who “corruptly 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” is also guilty of a criminal act, according to another provision of the SOX Act that follows this phrase.

Fischer argues that the two parts of the statute must be read as a whole, that the earlier, narrower provision limits the scope of the more general phrase “or otherwise obstructs” in the later, more specific part of the statute, and that the word “corruptly” serves as a connecting element between the two.

According to this interpretation, to charge the defendants with obstructing a congressional proceeding in a broader sense, Smith must first establish that they “corruptly” changed a record.

The argument goes like this: the statute doesn’t permit a standalone charge of obstruction of an official proceeding based on conduct like trespassing on the Capitol building.

However, he could add charges that the defendants “otherwise” engaged in other, similar forms of obstruction using records or documents. While none of the three defendants—Fischer, Edward Lang, and Garrett Miller—are accused of directly handling records or documents, they are all accused of having participated in the events of January 6.

U.S. Court of Appeals for the D.C. Circuit overturned the lower court’s decision in favor of the defendants, reasoning that SOX Act language is sufficiently broad to encompass their actions.

Smith’s prosecution of Trump and hundreds of existing convictions from January 6 could be jeopardized if the Supreme Court rules that the obstruction charge can only be applied to documents or records

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