Last week, the Supreme Court agreed to hear a case that could undermine not only many cases against those who stormed the Capitol on Jan. 6, 2021, but special counsel Jack Smith’s election interference case against former President Donald Trump. An adverse ruling could limit the charges that Smith can bring against Trump. The court should not interfere with these prosecutions and should allow federal prosecutors, including Smith, the chance to hold those responsible for the events of Jan. 6 accountable for their actions.
Smith’s indictment against Trump lists four counts: “conspiracy to defraud the United States, conspiracy to obstruct an official proceeding” (the certification of the Electoral College vote), “obstruction of and attempt to obstruct an official proceeding” and “conspiracy against rights” (in this case, Americans’ civil rights to have their votes counted).
Unless the court fast-tracks the case, it is unlikely to issue a ruling before the end of June.
The question now pending before the Supreme Court involves the second and third charges: whether the federal law that guards against corruptly obstructing an official proceeding can apply to individuals involved in the Jan. 6 attack. Congress enacted the law in the wake of the Enron scandals more than 20 years ago. It was originally intended to guard against white collar malfeasance: for example, a CEO accused of shredding documents or tampering with evidence during an ongoing criminal investigation.
The fact that the law was enacted in the wake of corporate financial scandals and meant to guard against white collar misconduct doesn’t mean it’s inappropriate to use the law here. Prosecutors have charged hundreds of alleged Jan. 6 rioters under this statute (18 U.S. Code § 1512). But in one of those cases — involving defendant Joseph Fisher — one federal judge ruled the statute’s wording doesn’t apply to those involved in Jan. 6.
While Judge Carl Nichols acknowledged that the certification of the Electoral College vote is an official proceeding, he found that defendants charged under the act must undertake “some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.” Because the government didn’t allege that the defendants took such actions, Nichols ruled the case against Fisher should be dismissed.
A divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit disagreed with Nichols’ interpretation and reinstated the charges against Fisher and two other defendants who had made similar appeals. The majority found that the law applies more broadly and doesn’t need to be linked to actions involving documents, records or other objects. Solicitor General Elizabeth Prelogar has argued that even if the court rules that defendants charged under this law must take some action with respect to documents or records, documents were at issue in this case because those who stormed the Capitol on Jan. 6 were trying to stop members of Congress from “validating the state certificates.”
The case now waits on the Supreme Court’s doorstep. Unless the court fast-tracks the case, it is unlikely to issue a ruling before the end of June. In this way, the Supreme Court’s decision to take the case is already a win for Trump. First, it threatens Smith’s ability to proceed on all four counts in the indictment. But second, and of equal importance, it will almost certainly delay the March 2024 trial date Judge Tanya S. Chutkan previously set in the case. Chutkan has already paused the case pending the outcome of a different appeal involving Trump’s claim of presidential immunity. While that appeal is fast-tracked, the delay is a win for Trump, whose best strategy for staying out of prison is to delay the cases as long as possible. The window is quickly closing on the public’s ability to hear the evidence Smith has garnered against Trump. Smith knows that time is of the essence. That is why earlier this week the high court agreed to fast-track his request on the question of whether Trump enjoys presidential immunity from federal prosecution for alleged crimes committed while in office. There is no secret why delay is Trump’s chosen defense strategy. The window is quickly closing on the public’s ability to hear the evidence Smith has garnered against Trump in a court of law before the 2024 election. If Trump can delay the case until at least the fall, he will argue that the case cannot possibly proceed during the final months of a presidential election campaign. If he wins the election, he can simply announce that he will be directing his new attorney general to drop the charges. If Trump is tried and convicted prior to his possible inauguration, he can attempt a self-pardon. In sum, delaying the trial date is an unqualified positive development for Trump. The court should not thwart federal prosecutors’ ability to hold those who sought to undermine the peaceful counting of valid votes to account. While the federal obstruction statute may not have originally been envisioned as a tool to punish a president who allegedly sought to illegally maintain power, that does not mean that it is an inappropriate one. Congress may not have originally envisioned that we would be in this position, where a president and others allegedly tried to undermine the counting of Electoral College votes that would usher him out of power. But it would be a mistake to limit the tools available to Smith — and the justice system as a whole.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
