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A lot of ink and pixels have been devoted to Donald Trump's "immunity" case that is going to end up in the Supreme Court before long. But there is another case looming that could have major implications for Special Counsel Jack Smith's case against Trump. It's a sleeping giant, even though Trump is a not a party to it.
The case is Joseph W. Fischer v. United States. At issue is a 2002 law, Sarbanes-Oxley (SOX), that was intended to prosecute financial crimes. Two of the crimes that Smith has accused Trump of—obstructing an official proceeding and conspiring to obstruct an official proceeding—were made into crimes by that law. Fischer entered the Capitol on Jan. 6, 2021, and was arrested for it and charged with obstructing an official proceeding (the counting of the electoral votes). Fischer is arguing that SOX applies only to financial crimes and he is not charged with money laundering or any other financial crimes. The wording of the law does not mention that it applies only to financial crimes, although the impetus for passing it was Enron's financial shenanigans. When then-president George W. Bush signed the bill, he noted that it had the effect of "strengthening laws that criminalize document shredding and other forms of obstruction of justice." Another part of the law specifically says that an official proceeding includes a proceeding before the Congress. Thus, Fischer's case appears to be weak.
However, there is another provision in SOX that says that whoever "corruptly—alters, destroys, mutilates, or conceals a record, document, or other object ... with the intent to impair the object's integrity or availability for use in an official proceeding" is engaging in a criminal act. Fischer is going to argue that he didn't "corruptly" do anything. He thought he was saving the republic.
The lower court agreed with Fischer, but the U.S. Court of Appeals for D.C. reversed that and ruled that SOX covers any official proceeding, even ones not related to finances or records. On the other hand, Smith's charges include Trump's role in the plan to submit false certificates from the fake electors, and those certificates are definitely documents.
Generally, the Supreme Court tends to be tough on crime—except when the crime is abstract and Republicans or right-wingers are the perpetrators. If the Supreme Court agrees with Fischer, then two of the four charges Smith brought against Trump may have to be thrown out unless Smith can prove that Trump "corruptly" took actions to encourage the insurrection. This makes Trump's state of mind critical. Laws that criminalize thought crimes are often difficult to prove. The other two charges will still stand, though.
Trump's trial is now slated for March 4 (unless the immunity stuff delays it). The decision in Fischer won't be announced until June. Consistent with Trump's strategy of delay, delay, and delay more, his lawyers are surely going to try to get the trial moved until after the Court rules on Fischer. Judge Tanya Chutkan could decide to ignore Trump's lawyers and hold the trial in March anyhow, saying that two of the charges are not related to SOX and if Trump is found guilty of them, the Fischer decision won't affect them. In any event, keep an eye out for this case as it could prove important later. (V)