The big news this week in the federal election subversion case is special counsel Jack Smith’s monster motion, which argues for why the Supreme Court’s immunity ruling doesn’t block Donald Trump’s prosecution. But another new filing shows that immunity isn’t the only thing threatening the case.
On Thursday, the former president’s lawyers filed a motion citing another case from the high court’s past term: Fischer v. United States.
Jan. 6 rioter Joseph Fischer argued that the charge of obstructing an official proceeding is meant for evidence tampering rather than rioting. The justices sided with Fischer.
Two of Trump’s four charges in his Washington indictment involve the obstruction charge. So it makes sense that his lawyers are citing the new precedent that’s favorable to Jan. 6 defendants. To that end, they argued to U.S. District Judge Tanya Chutkan:
Fischer forecloses the [Special Counsel] Office’s efforts to rely on events at the Capitol on January 6 to support charges under § 1512(c) [the obstruction charge], as the Superseding Indictment does not sufficiently allege that President Trump impaired, or intended to impair, the integrity or availability of any document or other object used in any official proceeding.
To be sure, Trump’s obstruction charges don’t automatically go away after Fischer. The theory of the case against him is different from the narrower cases against rioters. He’s accused of a broader scheme to subvert the results of the 2020 presidential election in a way that could still fit within Fischer even if rioters benefit from the ruling. Trump has pleaded not guilty.
Still, the Republican presidential nominee argues that not only his two obstruction charges but also his other two charges — conspiracy to defraud the U.S. and conspiracy against rights — should fall. His lawyers wrote: Consistent with the fact that the Special Counsel’s Office has failed to present factual allegations suggesting that President Trump acted “corruptly” in Counts Two and Three [the obstruction counts], the Office has not adequately alleged that President Trump specifically intended to violate individual civil rights as required by § 241 [conspiracy against rights], or acted deceptively under § 371 [conspiracy to defraud the U.S.].
It’s safe to say this is an aggressive argument. But so was the immunity claim before the Supreme Court made it a reality, so we can never be sure until the justices weigh in. With that in mind, consider how Trump’s lawyers frame the Fischer case against the backdrop of the last term’s Trump-friendly trio of appeals on immunity, obstruction and clearing him to run for office again despite the Constitution’s insurrectionist ban. “The Supreme Court’s decision in Fischer v. United States … is yet another key application of the rule of law to reject lawfare overreach targeting President Trump,” they wrote in Thursday’s motion, citing the immunity and ballot eligibility cases. To the extent that that language is meant for a legal audience, it might be more directed toward the justices who’ll eventually review Chutkan’s latest round of work — that is, if Trump doesn’t win in November and kill the case before it can go back up the appellate chain. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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