Potentially Hugenormous: Supreme Court to Hear Appeal of Indictment of January 6th Defendant on Key Claim of "Obstructing an Official Act"

Federal prosecutors have been using this very vague federal law to lock people up left and right, and one man is challenging the law's application on the grounds of impermissible vagueness.

It is a bedrock principle of constitutional and criminal law that citizens have a right to know what the law actually is. It should be readily discoverable, if someone goes looking. They should not have to guess, and it should not be so malleable that prosecutors may claim it means whatever they may wish it to mean retroactively.

Making this challenge even more salient: the Very Special Counsel in the Trump prosecution, Jack Smith, is prosecuting Trump under this same silly-putty interpretation of the same vague clause.

The U.S. Supreme Court on Wednesday agreed to decide whether a man involved in the Jan. 6, 2021, U.S. Capitol assault can be charged with obstructing an official proceeding, a case with potential implications for the prosecution of Donald Trump.

The man is one of at least 325 people facing that charge for their alleged roles in the attack, which has also been brought against the Republican former president in the federal case charging him with trying to overturn his 2020 election defeat by Democratic President Joe Biden.

The justices said nothing about the Trump prosecution in agreeing to take up the case, but legal experts said Trump's lawyers could argue that the court's move should delay the start of his Washington trial on election subversion charges, currently due to begin in March.

Huh! Well slap me in the face and call me Sally!

Trump, the frontrunner for the 2024 Republican nomination to challenge Biden, is facing four concurrent criminal prosecutions. But the Washington case brought by U.S. Special Counsel Jack Smith is scheduled to begin first and is seen as the likeliest to be resolved before the Nov. 5 election.

The case taken up Wednesday by the justices involves defendant Joseph Fischer, who was indicted on seven charges following the Jan. 6 riot. Among his charges is one count under a provision of federal criminal law for anyone who "corruptly ... obstructs, influences and impedes any official proceeding."

The Supreme Court is expected to hear arguments in the case in the coming months and issue a ruling by the end of June.

Typically, the Supreme Court agreeing to review an issue in one case would not be a basis for pausing a separate case that raises the same issue, said Barbara McQuade, a law professor at the University of Michigan and former top federal prosecutor appointed by then-President Barack Obama. Still, McQuade said she expects Trump's legal team to make the argument because delay "has been his strategy throughout all of these cases."

U.S. District Judge Carl Nichols, a Trump appointee, granted Fischer's pretrial motion to dismiss his obstruction charges, ruling that the statute applied only in cases in which a defendant had taken "some action with respect to a document, record or other object."

I mean, you can't just suddenly declare a law means something that it has never before meant just because you really want it to and there is no law on the books to criminalize the conduct you want to punish. If there is no law criminalizing the conduct, guess what? It's not a crime. You don't just get to rewrite the law on the fly to make it a crime retroactively.

This is a foundational part of the law! There's a whole part of the Constitution forbidding the application of a new law to prior crimes!

Federal prosecutors appealed that ruling to the U.S. Court of Appeals for the District of Columbia Circuit. A divided three-judge panel on the D.C. Circuit in April reversed Nichols' ruling, saying the statute was not limited to documents and records, but instead "applies to all forms of corrupt obstruction of an official proceeding."

The charge carries a maximum sentence of up to 20 years in prison with a conviction.

Fischer is awaiting trial on his other criminal charges, including one count of assaulting, resisting or impeding officers and one count of civil disorder, among other charges.

Julie Kelly writes that the "untested legal imagination" -- the unfettered legal imagineering and dreamcasting of Jack Smith and Fani Willis and Alvin Bragg and "Tish" James -- is the mother of all the Trump prosecutions and the J6 prosecutions.

Donald Trump doesn't know Thomas Robertson. But the former president's fate appears inextricably tied to that of the former Army Ranger, who was convicted last year for his involvement in the Jan. 6, 2021 protest at the U.S. Capitol. U That's because the prosecutions of Trump and his supporters, including Robertson, have often depended on reimagining the law in novel ways.

To advance the narrative that Trump colluded with Russia, for example, the Department of Justice seized on the little-used Foreign Agents Registration Act to justify probes and wiretaps of Trump allies. In the Georgia election fraud case against Trump and numerous campaign advisers, Fulton County District Attorney Fani Willis is using a law intended to combat organized crime, the Racketeer Influenced and Corrupt Organization (RICO) Act, in what even her supporters describe as a stretch.

In Washington, D.C., prosecutors are using a financial crimes statute passed by Congress in 2002 in response to the Enron scandal to bring felony charges against hundreds of Jan. 6 defendants, including Trump and Robertson. Lawyers for both and for other Jan. 6 defendants argue the law is being misapplied. The controversy could soon wind up before the Supreme Court.

Prosecutors getting creative with the law: To pursue Trump and supporters, they've tapped an Enron-era financial crimes statute ...

... and the RICO law used to go after mobsters like John Gotti.

Defense attorneys say the government is using the power of law enforcement to misinterpret, and even weaponize, nebulous language in the legal code.

...
Federal prosecutors so far have charged more than 300 Jan. 6 defendants with obstruction under that statute. In August, Smith's office handed down a 45-page indictment against Trump, claiming his attempts to persuade Vice President Mike Pence to reject some electoral college votes and organize alternate slates of electors, among other acts, also represented an attempt to obstruct the certification of the 2020 election.

Smith's indictment is hardly the first time the DOJ sought to nab Trump on the obstruction count. It represents the culmination of a years-long effort dating back to 2017, when Special Counsel Robert Mueller investigated Trump for violating 1512(c)(2) as part of his probe into Russia's role in the 2016 election.

The second volume of Special Counsel Robert Mueller's "Report On The Investigation Into Russian Interference In The 2016 Presidential Election" enumerated multiple instances where Trump allegedly violated 1512(c)(2).

Mueller concluded that Trump's behavior in office met the statute's largely undefined language regarding obstruction. "Section 1512(c)(2) applies to corrupt acts -- including by public officials -- that frustrate the commencement or conduct of a proceeding, and not just to acts that make evidence unavailable or impair its integrity."

Robert Mueller, special counsel: His Trump-Russia probe cited multiple instances where Trump allegedly violated 1512(c)(2). But charges were never brought.

Mueller, however, did not refer Trump to the Justice Department on the obstruction count even though he repeatedly suggested the then-president should be investigated accordingly. Attorney General William Barr disagreed with Mueller's assessment and did not charge Trump.

But the government's desire to broadly interpret the statute in Trump-related cases did not end there.

The silly-putty "For Trump and Republicans only" spackle-law continued through the January 6th Moral Panic Witch-Trials.

Read more at the link.

If it falls for the J6ers, it falls for Trump.

And I think it will. This would be the neatest, cleanest, most rational, most rule-based, and sanest way out of this for the Court and the country as well.

Courts, at least a while ago, used to like just disposing of troublesome, bullshit cases by saying "void for vagueness." I don't know if they still do that, and I'm talking more about liberal courts just itching to overturn laws for any pretext, but...

The court will have that out here. Because this law is vague, and it obviously is being twisted in a partisan bad-faith way.

And what can the counter-argument be? This law is obviously vague. Throughout all of its prior history it was believed to only apply to altering a document. Now it is claimed oh, no, it's words are so vague they also apply to rioting in the Capitol, and we never even suspected they meant that, because they're so vague, they could mean practically fucking anything.

Well, if the words are vague enough to also encompass rioting, then they're so vague that the statue is, what's the term?, Void for Vagueness.

I have hopes you guys.

I have hopes.

But I've been wrong before, fellows and friends. You know that all too well. (Preferences are cascading you guys!!! Preferences are cascading!!!)

I corrected -- I softened my language. I sounded way too sure, and also, I was basing my claims on stuff I remember from 20 years ago, not more current readings.

posted by Disinformation Expert Ace at 03:40 PM

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