According to a report by Newsweek on Sunday, February 18, 2024, a legal expert has warned that a case currently before the Supreme Court could undermine Jack Smith’s most important charge against former President Donald Trump, who is accused of instigating the January 6, 2021, Capitol attack.
Jeffrey Rosen, the president and CEO of the National Constitution Center, wrote in an article for Politico that the case, Joseph W. Fischer v. United States, could result in the dismissal of half of the counts against Trump and hundreds of other rioters.
The case involves Fischer, a police officer from Pennsylvania who was arrested for joining the mob that stormed the Capitol. Fischer faces four counts, including obstruction of an official proceeding and conspiracy to do so.
These counts are based on a 2002 law called the Sarbanes-Oxley (SOX) Act, which was passed after the Enron corporate accounting scandal to prevent fraud and corruption.
The SOX Act criminalizes “knowingly … corruptly … influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States.”
The DOJ has applied this provision widely to any official proceeding of the federal government, including the congressional certification of the 2020 presidential election results that was interrupted by the rioters.
However, Fischer and other defendants have contested this application, claiming that the SOX Act was only meant to cover financial crimes and not political protests.
They argue that the law is unclear and excessive, and that it violates their First Amendment rights to free speech and assembly.
The Supreme Court agreed to review Fischer’s case in December 2023, and oral arguments took place on January 10, 2024.
The court’s ruling, which is expected by June 2024, could have significant consequences for Smith’s prosecution of Trump and other rioters.
If the court rules in favor of Fischer, it could mean that the obstruction of an official proceeding and conspiracy to do so counts are invalid and must be dropped.
These are the most serious counts that Smith has filed against Trump, alleging that he orchestrated a plan to overturn the 2020 election by pressuring state officials, filing groundless lawsuits, and inciting his supporters to invade the Capitol.
The other two counts that Smith has brought against Trump are conspiracy to defraud the United States and conspiracy against rights.
These counts are based on different laws that are not affected by the Fischer case, but they are also more challenging to prove and carry lower penalties.
Rosen wrote that if the court invalidates the SOX Act counts, Smith would have to depend on the remaining counts to hold Trump accountable for his alleged role in the attack.
However, Rosen also noted that Smith could still pursue other legal options, such as charging Trump with seditious conspiracy, which is a more serious offense that carries a maximum sentence of 20 years in prison.
Rosen also pointed out that the Fischer case is not the only Supreme Court challenge that Smith faces.
The court is also considering whether Trump has any immunity from federal prosecution for actions taken while he was president, a claim that Trump has raised to avoid Smith’s indictment.
The court has not yet decided whether to hear this case, but if it does, it could further complicate Smith’s efforts to bring Trump to justice.
Smith, who was appointed by Attorney General Merrick Garland in June 2023, has been leading a comprehensive investigation into Trump and his associates, focusing on their alleged attempts to interfere with the 2020 election and the peaceful transfer of power.
Special counsel Smith has also indicted several former Trump officials, such as Steve Bannon, Mark Meadows, and Rudy Giuliani, for their roles in the alleged conspiracy.
Smith has faced strong opposition and criticism from Trump and his allies, who have accused him of conducting a politically motivated witch hunt and violating their constitutional rights.
Smith has also faced legal obstacles and delays, such as the Supreme Court cases and the refusal of some witnesses to cooperate with his subpoenas.
Despite these challenges, Smith has vowed to continue his investigation and to follow the facts and the law wherever they lead.
Smith has said that he is not influenced by political pressure or public opinion, and that he is committed to upholding the rule of law and the integrity of the democratic process.
Smith has not commented on the Fischer case or its potential impact on his prosecution of Trump.
However, he has expressed confidence in the strength and validity of his counts, and he has asked the court to expedite the resolution of the legal issues involved.
Smith has also requested that Trump’s trial, which was originally scheduled to begin in February 2024, be postponed until the Supreme Court cases are decided.
