• Show Notes

Read the latest Note from Elie here: “The Danger of Weaponization – no matter who does it.” 

Dear Reader,

Jack Smith is in a tough spot.

In a surprise move this week, the Supreme Court granted review in the prosecution of Joseph Fischer, a January 6 defendant who exhorted his fellow rioters to “charge” the Capitol and physically clashed with police at the scene. The Fischer case could upset DOJ’s prosecutions of dozens of January 6 defendants – including one Donald John Trump. 

Here’s the issue. The Justice Department charged Fischer (and other Capitol rioters) with “obstruction of an official proceeding.” On its face, that obstruction law applies broadly to anybody who seeks to “corruptly obstruct, influence, and impede an official proceeding.” The Justice Department’s theory was, in essence, that the meeting of Congress to count up the electoral votes on January 6 counts as an “official proceeding” and that, by storming the Capitol, Fischer and others sought to prevent or delay that governmental function. Seems straightforward, on its face. I’m on board.

So, too, are most federal judges who have reviewed the issue. Fischer and other similarly-charged January 6 defendants have challenged application of the obstruction law to their cases. They’ve argued, in essence, that the obstruction law should apply narrowly to textbook tampering with witnesses or evidence in criminal or civil legal proceedings, and not to the rioting at the Capitol on January 6. (Again, folks: I’m not buying this, but I’m also not the judge here.) Fischer had some temporary success in the lower courts. The district court judge ruled in his favor, tossing out the obstruction charge, but the Court of Appeals then reversed and reinstated his conviction, by a two-to-one vote. Fischer came close but, to date, no January 6 defendant has succeeded in getting an obstruction charge thrown out. 

That’s why it’s so noteworthy that the Supreme Court has decided to take Fischer’s case. There’s no split of opinion in the lower courts. They’ve all reached the same conclusion: the obstruction statute fits January 6. We don’t know what the Supreme Court will do, of course. But, as a general proposition, the Supreme Court doesn’t take up cases just to tell the lower courts, Hey, nice job everyone below, you’ve all gotten it right! 

Also consider that, over the past decade or so, the Court has trended heavily towards narrowing, not expanding, the scope of federal criminal laws. Since 2016, we’ve seen the Court (on a largely cross-ideological basis) strike down convictions of the former Virginia governor, of two defendants in the Bridgegate case, of a top aide to the former New York governor, and of top New York legislators – all based on narrow constructions of the charged criminal offenses. 

If the Court indeed throws out Fischer’s January 6 conviction for obstruction, brace for a seismic ripple effect. Dozens of January 6 Capitol rioters will have their convictions reversed, too. (This would not necessarily result in an immediate emptying of the prisons; many rioters were also convicted of other offenses including trespass, assault, or destruction of property, all of which would still stand.) 

Perhaps of even greater moment, Jack Smith’s case against Trump would take a major hit. The Special Counsel charged Trump with four counts total: two obstruction counts (one for actual obstruction and the other for conspiracy to obstruct) and then two other counts (one for conspiracy to defraud the United States and another for conspiracy against the rights of American voters). If the Supreme Court rules in favor of Fischer and throws out his obstruction conviction, then Smith’s two obstruction charges against Trump will be wiped out as well. (Note that the obstruction charges are the most serious in Smith’s case; they carry 20-year maximums, while the other charges carry 10- and five-year maximums).

So what does Jack Smith do now? He’s got three options, and none of them are great. (Though each offers a potential pathway to salvage the case.)

First, Smith can proceed with his trial as scheduled in March 2024 (or as soon as possible if that date moves) and then hope for the best from the Supreme Court. The risk, however, is that if Smith first gets a trial conviction, but then Supreme Court rules that the obstruction statute does not apply to January 6, then any obstruction conviction of Trump would be reversed, too. And a conviction of Trump on the other (non-obstruction) charges could be in jeopardy too, on the theory that the (invalid) obstruction charges tainted the overall trial. This, in my view, is too great a risk for Smith to take, and I don’t think he’ll go this route. 

Second, Smith can preemptively drop his own obstruction charges and then proceed to trial on the two remaining non-obstruction counts. That’s the safest, most conservative (lower-case “c”) approach, but it carries major downside. A voluntary dismissal by Smith will be widely perceived as a sign of weakness, as a compelled concession of a devastating legal setback. Imagine the victory lap Trump will do if Smith gives up the two most serious charges in the case: Well folks, it’s official. Even Jack Smith now admits that he overcharged me, and that his top charges against me were bogus. (That’s the PG-rated, factually accurate spin; imagine how bad it’ll really get coming from Trump himself.) Add in the fact that Smith, by all accounts, is fanatically aggressive and competitive, and I just don’t see this one happening, either. 

Third, Smith can wait until after the Supreme Court rules on the Fischer case, and try his case then. This way, he’ll know, either way. Either the Court rules that the obstruction charges do apply to January 6 (in which case Smith can keep his indictment as is, with all four charges intact) or the Court strikes down the obstruction charges (in which case Smith can proceed to trial on the other two counts). The big issue here, of course, is timing. In the ordinary course, the Court wouldn’t rule on a case of this nature, arising so late in the term, until the very end of the term, in June or July 2024. Smith simply cannot afford to wait that long and still get the trial in before the election in November. There’s no way Smith can realistically start a Trump trial in, say, August 2024, carrying through the entire heart of the general election campaign in September and October, and then up to and potentially through Election Day in November. 

The solution – or, the partial solution – is for DOJ to request that the Court grant expedited review of the Fischer case. In that scenario, the Court might be able to rule by, say, early Spring 2024. That would certainly wipe out the March 4 trial date, but it could still allow Smith to start a trial in late spring or perhaps early summer. (That would, of course, have the collateral effect of bumping back the Mar-A-Lago classified documents trial, which is currently slated for May 2024; it’s all a massive game of dominoes.) 

Over the past year, I’ve faulted Smith at times for some of his moves, though generally I’ve agreed with his tactics and approach. This one is genuinely not his fault. It seemed logical and straightforward to apply the obstruction statute to the January 6 attack; I didn’t hear a single credible expert or commentator opine that such charges wouldn’t stick, and the vast majority of federal judges who have considered the matter have come to the same conclusion. 

But the Supreme Court will do as it pleases. And now Jack Smith has a mighty conundrum on his hands. 

Stay Informed,