Jack Smith Finds Himself on Shaky Ground in Donald Trump Trial

Special Counsel Jack Smith's attempt to prosecute Donald Trump may be hindered by Supreme Court challenges to a charge cited against hundreds of people prosecuted over the January 6 attack.

The U.S. Court of Appeals for the D.C. Circuit has narrowly ruled in favor of the Department of Justice in two cases involving charges of obstruction of an official proceeding brought against suspects arrested over the Capitol riots in January 2021.

The first appeal involving former North Cornwall police officer Joseph Fischer was rejected in April. A separate appeal from former Rocky Mount Police Sergeant Thomas Robertson, who was sentenced to seven years in jail for five felonies—including obstruction of an official proceeding—in connection to the January 6 attack was thrown out on October 20.

The defendants argued that the obstruction count, formally known in the penal code as 18 U.S.C. 1512(c)(2), should not be used against them over the January 6 attack. Prosecutors argued that the attempt to disrupt the certification of the 2020 election result in Congress at the Capitol justifies the charge to "corruptly" obstruct, impede or interfere with an official government proceeding.

However, in both decisions, there was a 2-1 split between the three-judge panel in the Circuit Court of Appeals as to whether the charge, introduced in 2002 in the wake of the accounting scandal involving energy company Enron to prevent the destruction of evidence or witness intimidation, should be cited in January 6 cases.

In an article for Lawfare, the site's senior editor Roger Parloff said that even though the appeals courts ruled in favor of the DOJ, the decisions were "exquisitely unstable" and may still end up in the Supreme Court, especially the Fischer case.

If the charge does end up being quashed by the conservative-majority Supreme Court, it could have a knock on effect for Smith's federal case against Trump. Two of the four charges which the former president has pleaded not guilty to in the federal January 6 case are conspiracy to obstruct an official proceeding and attempt to obstruct an official proceeding.

Trump's legal team has recently attempted to have the case dismissed over the obstruction charges, suggesting the allegations cited again the former president "stretches the statutory language beyond any plausible mooring" to its original definition.

While noting the three appellants in the Fischer case are now seeking U.S. Supreme Court review of the Appeals Court ruling, Parloff wrote: "The judges who wrote it can't agree about its holdings, and its holdings determine the viability of a 20-year felony that an ex-president and major presidential candidate now stands charged with violating.

"Moreover, at the appeals court level, judges' acceptance of the Justice Department's interpretations of that law have been 100 percent correlated with the political party of the judge's appointer."

"If that trend continues, and if either case climbs one more rung up the appellate ladder, the department faces bleak prospects indeed."

Neama Rahmani, a former federal prosecutor and president of West Coast Trial Lawyers, said that the charge of corruptly obstructing an official proceeding has not been "extensively litigated" since it was brought in more than 20 years ago, with any decision on its appropriateness in the January 6 cases potentially affecting Smith's case against Trump.

"The Capitol rioters argued that Congress certifying the electoral votes was not an 'official proceeding' and courts have universally rejected that argument," Rahmani told Newsweek.

"This bigger question is, what satisfies the 'corruptly' requirement? Is it any criminal conduct, such as trespassing in the Capitol building or submitting fake electors? Or does the corrupt conduct have to relate to the other subsections of 1512, which prohibit destroying or concealing evidence?

"If the corruption requires consciousness of guilt, then Trump can argue that he genuinely believed the election was stolen," Rahmani said. "Either way, this issue will likely end up before the United States Supreme Court because it is a novel issue that affects hundreds of criminal defendants, including the former president."

In a series of posts on X, formerly Twitter, Parloff said that the Supreme Court "doesn't typically take interlocutory criminal appeals, which is what these are," so the rulings involving Fischer and Robertson may still stand.

Parloff said that the DOJ has filed a "very strong brief" opposing any SCOTUS intervention in connection to the appeal decisions over the obstruction charges.

Replying to the post, former FBI General Counsel Andrew Weissmann suggested that Smith and the DOJ must hope that any SCOTUS ruling regarding the obstruction charges arrives before Trump's March 2024 federal trial into his alleged criminal attempts to overturn the 2020 election results.

"If you are Jack Smith, wouldn't you prefer this to be decided BEFORE your Trump obstruction trial, not after? But that is assuming if it would be decided quickly, which is a big 'if'," Weissman wrote.