Legal experts predict Supreme Court will rule against Special Counsel Smith, fed prosecutors use of financial crimes law against Trump, Jan. 6 protesters

 January 11, 2024

The Supreme Court will soon weigh in on the use by federal prosecutors of a particular criminal "obstruction" statute against hundreds of Jan. 6 Capitol rioters as well as against former President Donald Trump by Special Counsel Jack Smith.

It has been argued that the federal prosecutors have stretched their interpretation of the vague statute far beyond its original intent and several legal experts have now predicted that the high court will ultimately rule against the government, according to The Epoch Times.

If that is what happens, the charge pressed against hundreds of Jan. 6 defendants and the former president will likely be tossed out, potentially undermining if not ending completely some or all of those prosecutions.

Fed prosecutors broadly interpret financial crimes statute against Jan. 6 protesters, Trump

At issue here is 18 U.S.C. § 1512(c), which arose after the Enron scandal and was intended by Congress to punish the destruction of or tampering with evidence in white-collar financial crimes to delay or obstruct prosecutorial proceedings.

The statute states: "Whoever corruptly -- (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both."

Federal prosecutors, along with Special Counsel Smith, have ignored the financial crimes aspect of the law and instead sought to use the statute's "(2) otherwise obstructs ... any official proceeding" to punish Jan. 6 protestors and former President Trump over the temporary delay of the congressional certification of President Joe Biden's Electoral College victory.

Supreme Court to review government's broad use of statute against Jan. 6 protesters

SCOTUSblog reported in December that the Supreme Court agreed to take up the case of Fischer v. United States, in which former police officer Joseph Fischer, who entered the Capitol building and briefly walked around before leaving, challenged the government's use of the obstruction statute against him and other Jan. 6 defendants.

A district court judge had agreed with Fischer that the government's interpretation of the statute was overbroad and dismissed the charge. However, it was later reinstated by a split appeals court panel, which resulted in the petition for Supreme Court review that was accepted.

A date for oral arguments in the case has not yet been scheduled, but it will occur at some point in the current term, and The Epoch Times reported that several legal experts have suggested that the Supreme Court will ultimately side with Fischer and other similarly situated Jan. 6 defendants -- plus former President Trump -- and strike down the government's expansive interpretation of the statute.

Legal experts predict charge will be tossed by Supreme Court

Jim Burling, of the Pacific Legal Foundation, told The Epoch Times that it was "utterly absurd" that President Biden's Justice Department was using a financial crimes statute with a 20-year sentence to intimidate and provoke guilty pleas from protestors who did little more than wander around the Capitol building during the riotous unrest on Jan. 6, 2021.

He said prosecutors were exploiting the section that says "'otherwise obstructs,' and having it as a free-floating provision where anybody who otherwise obstructs any official proceeding, or attempts to do so can be subject to 20 years," and predicted, "I think both the liberals and the conservatives on the Supreme Court are going to be very wary of this overcharging."

The law "is a powerful tool against corporate corruption. That’s what … it was meant to be for, and that’s what the plain language of the statute talks about. You can’t simply separate these two sections out -- section one and section two of 1512(c) -- and pretend they’re completely different things," Burling added. "The idea that section one is untethered from section two is rather creative, and I don’t think it’s going to hold water."

Former prosecutor turned defense attorney David Gelman agreed that the Supreme Court was likely to strike down the government's overbroad interpretation of the statute, which would cause "a rolling cascade" of dropped charges and reopened cases for hundreds of Jan. 6 defendants and "would really kill Jack Smith’s case against President Trump."

Curt Levey, of the conservative Committee for Justice, said the government's use of the financial crimes law "is incredibly inapplicable here" and that "Nobody would have dreamed it would be applied to protests that got out of control at the Capitol." He further stated, "There’s virtually no chance that the Supreme Court will say that the provision applies to the January 6 protesters," and added, "I do think they’re going to throw this [prosecution] out."

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