Donald Trump’s immunity claim isn’t the only Jan. 6-related appeal the Supreme Court will hear argued in April. Before the justices needlessly took up review of Trump’s case on Wednesday for argument the week of April 22, the high court had already set the case of Joseph Fischer for an April 16 hearing.
Though the two cases are different, there’s a potential benefit for special counsel Jack Smith in having Fischer’s decided before the federal election interference case goes to trial. That is, if it goes to trial, in light of the further delay that will result from the court taking Trump’s case instead of just rejecting it and sending it back for trial now.
The potential benefit to Smith stems from the fact that both Fischer and Trump are charged under the same obstruction law. The cases are, again, different: Fischer is an alleged rioter, and Trump is charged against the backdrop of the broader effort to overthrow the 2020 election. Fischer is attacking how the statute is being used against him, and the Supreme Court’s decision could affect many Jan. 6 cases. But the difference in how the statute has been applied to rioters on one hand and to Trump on the other means that even if the justices side with Fischer, that wouldn’t necessarily have significance for Trump’s charges. (Further distinguishing Trump’s case is that, in addition to two obstruction-related offenses, he’s also charged with conspiracy to defraud the United States and conspiracy against rights.)
Nonetheless, we don’t know what the Supreme Court will do in Fischer’s case. Ideally, Trump’s prosecutors would want to know if the high court is planning to upend how the government can use the obstruction charge. If the federal election interference trial were to have gone forward in March as previously scheduled, then it would have proceeded with the unknown effect of the Fischer case hanging over it. Now, with both the Fischer case and Trump’s likely to be decided by July, Smith’s team will know what impact, if any, Fischer’s case has on Trump’s. How the justices rule on the scope of the statute could affect, for example, how the jury is instructed, an issue that sounds mundane but can give rise to appeals.
To be sure, Smith knew about the pending Fischer case and didn’t want to wait for it. And it may wind up having limited or no relevance for Trump’s prosecution. But in this new reality of the Supreme Court’s making, if Trump’s trial goes forward (assuming the justices don’t grant him immunity), then the Fischer issue, such as it is, will at least be settled one way or the other ahead of time. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
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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