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There’s been a lot of attention paid to the Supreme Court’s upcoming decision on Donald Trump’s claim of immunity from prosecution for actions taken while president, a judgment that will have big implications for the 2024 presidential campaign and special counsel Jack Smith’s indictment of the former president on charges related to Jan. 6. But there’s a sleeping giant of a case also percolating in the Supreme Court that’s even more likely than the immunity issue to impact Smith’s prosecution of Trump. The case is Joseph W. Fischer v. United States, which the court agreed to hear in December, and which doesn’t explicitly mention Trump. At issue is whether prosecutors and the Department of Justice have been improperly using a 2002 law originally aimed at curbing financial crimes to prosecute a Jan. 6 defendant named Joseph Fischer. Should the court side with Fischer, it would also call into question the use of the law against other Jan. 6 defendants — including Trump. Smith’s indictment contains four counts in total. Two of those are for obstruction of an official proceeding and for conspiracy to do so. Those crimes are part of a relatively recent criminal statute governing financial disclosures known as the Sarbanes-Oxley (or “SOX”) Act, which was enacted following the Enron corporate accounting scandal, and which makes it a crime to obstruct an official proceeding of the U.S. government. The Justice Department has so far used it to charge over 300 people involved in the Jan. 6 insurrection; more than 150 have been convicted of the offense following jury trials or pleaded guilty to it. Many of these defendants, including Fischer, have argued that the “obstruction of an official proceeding” part of the SOX Act was only meant to apply narrowly to financial crimes similar to the ones that produced the law in the first place — and not as broadly as the Justice Department has used it in the Jan. 6 cases. Courts across the country have already been wrestling with the question of whether the SOX Act’s obstruction provisions apply to the various means by which people tried to halt Congress’ examination and ratification of the presidential election results favoring Joe Biden. As of this month, at least 14 judges in 22 cases had backed DOJ’s interpretation. But some have expressed doubts after the Supreme Court agreed to hear Fischer’s case; in at least two of the Jan. 6 cases, trial judges have delayed the defendants’ sentencings pending the Supreme Court’s ruling on the issue, meaning the underlying SOX Act charges may be vulnerable. The impact of Fischer on the Jan. 6 trial against Trump might not be known until after the Supreme Court wraps up its term in June, at which point it could knock out half of Smith’s counts against Trump. And it could also disrupt the convictions of many Jan. 6 defendants already serving time for their role in the insurrection. Several conservative members of the high court describe themselves as “textualists” who take the words of a law at face value, and to a textualist reader the SOX Act would likely seem straightforward. Consider its language: “Whoever corruptly . . . 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.” The statute’s language does not clearly specify that only certain kinds of obstruction qualify. The broader reading of the statute would appear to be what Congress intended. Remarking on the bill that became the SOX Act, then-Rep. Jim Sensenbrenner (R-Wis.) repeatedly observed that it “strengthens laws that criminalize document shredding and other forms of obstruction of justice.” Referring to the statute in a 2002 White House press release, President George W. Bush likewise touted “strengthening laws that criminalize document shredding and other forms of obstruction of justice.” (Emphases added.) Another part of the law defines “official proceeding” as including “a proceeding before the Congress.” So, DOJ’s legal equation would appear logically simple: On Jan.. 6, Congress was engaged in the official proceeding of counting the Electoral College votes for president under the Constitution and the Electoral Count Act. Trump took numerous steps to impede that process, and he did it corruptly, which loosely means that he knew what he was doing and his purpose was unlawful. But here’s the wrinkle. Immediately preceding this language is another provision of the SOX Act, which specifies 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,” engages in a criminal act, too. (Emphasis added.) The Fischer argument is that the two provisions must be read together — that the phrase “or otherwise obstructs” in the broad part of the statute is confined by the narrower provision that came before it, with the link between the two being the opening word “corruptly.” Under this reading, Smith would be required to prove that the defendants “corruptly” altered a record as a threshold matter before they can be charged more broadly with obstructing a congressional proceeding. He could add charges that the same defendants “otherwise” engaged in other, similar forms of obstruction using records or documents, the argument goes, but the statute doesn’t allow a standalone charge of obstruction of an official proceeding based on conduct such as trespassing on the Capitol building. Fischer and two other defendants in the case, Edward Lang and Garrett Miller, are charged with participating in the events of Jan. 6 — not personally taking any actions regarding records or documents. The lower court agreed with the defendants, but the U.S. Court of Appeals for the D.C. Circuit reversed, finding that the SOX Act language is broad enough to cover their conduct. (The Supreme Court only took up Fischer’s case, leaving the D.C. Circuit ruling to stand for now as to Lang and Miller.) The government’s argument is that the broad language of the provision employed by DOJ is clear, and there’s no need to read between the lines to intuit a conclusion that Congress actually meant to qualify all parts of the statute to require a corrupt nexus to a document or record. After all, the law refers to altering a record or otherwise obstructing an official proceeding — it doesn’t say “and.” In the words of Justice Oliver Wendell Holmes, writing in 1929, “there is no canon against using common sense in construing laws as saying what they obviously mean.” Although conservative jurists, adhering to the plainest reading of the text, would presumably agree with the Justice Department, the fact that the Supreme Court voted to consider the Fischer case after so many Jan. 6 defendants have been convicted of violating the SOX Act means that a number of justices do have a problem with DOJ’s interpretation. Needless to say, a Supreme Court ruling that limits the application of the obstruction charge to documents or records has the potential to undermine Smith’s prosecution of Trump and overturn hundreds of existing Jan. 6 convictions. A saving grace for Smith could be that in Trump’s case, the indictment contains other allegations, including that he assisted in devising and implementing a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, so it seems distinguishable from Fischer’s case. A fraudulent slate of electors is a document, after all. But until such point that the Jan. 6 case against Trump goes to the jury for deliberation on a verdict, the Supreme Court could rule in a way that gives Trump room to file a fresh motion to dismiss the SOX Act counts against him, which would produce even more delay. The trial is currently set for March 4 on four charges — the two SOX Act charges, plus one count of conspiracy to defraud the United States and one count of conspiracy to threaten the exercise of rights secured under the Constitution, in this case, the right to vote. Although the presidential immunity appeal could slow things down, the Supreme Court hasn’t even agreed to hear it yet and could conceivably decline. Moreover, Trump will likely lose anyway, which means Smith would have to wait that one out until the court rules in June, at the latest. At that point, he can go to trial over the summer on all four counts in sufficient time to secure a jury verdict before the November election. If the immunity issue resolves before March 4, or at least before Fischer is decided, Smith — and for that matter, U.S. District Judge Tanya Chutkan — may go forward with a trial on all four counts despite the risk that two of them might be declared invalid. (Smith could seek expedited review of Fischer in the Supreme Court, but it denied a rush request on the immunity issue, so that effort would seem futile.) If the trial occurs on the sooner side, and the Supreme Court later rules in a way that impacts Trump’s case, it could give Trump a basis to appeal a conviction on the rationale that the jury was tainted by evidence bearing on flawed SOX Act charges. (The problem for Trump would be that the relevant evidence probably overlaps with the conspiracy to defraud the United States charge anyway.) If a guilty verdict is reversed on appeal for some reason, Smith would have to retry Trump, which is not feasible given the treacherous politics of prosecuting former presidents not once, but twice. And if Trump wins the election, he’d surely call off the prosecution or try to pardon himself. Alternatively, Smith could go to trial in March on just the two remaining counts, but that would cut down the numerical odds of a guilty verdict — not to mention the fact that the first SOX Act count is the only one that doesn’t require proof of a conspiracy, or a meeting of the minds between more than one person — and will be perceived as a political triumph for Trump. At a minimum, then, the Supreme Court’s decision to hear the Fischer case means the Jan. 6 case against Trump has legal exposure if it goes to trial on March 4, although the court might ultimately uphold DOJ’s use of the obstruction charge in Fischer. And if it doesn’t back the government … well, that would have enormous legal and political impacts for hundreds of Americans, perhaps most especially for a certain former president.
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Jan 18, 2024 02:39
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I hadn't been following the individual j6 idiots' cases so it's deeply amusing to learn how many of them are gonna walk when scotus says the corporate accounting law doesn't apply to high profile vandalism.
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Jan 18, 2024 03:15
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if the Supreme Court does allow the DOJs interpretation to stand doesn’t that essentially mean it could be applied to pretty much any protestor ever, or at least any of them anywhere near a government building?
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Jan 18, 2024 03:30
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Thoguh posted:if the Supreme Court does allow the DOJs interpretation to stand doesn’t that essentially mean it could be applied to pretty much any protestor ever, or at least any of them anywhere near a government building? i'm sure they'll find a way to say that it's totally cool to charge non-fascists with it
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Jan 18, 2024 05:44
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Hasn't "treason" already addressed all these concerns via SC opinions? They already clarified protest versus impeding the government. They've already defined opportunity and "conspiracy", and the burdens of proof. I honestly didn't know they were using SOX for all the cases. Surely there's some USC 18.xyz that covers aggressive behaviors on federal property, and provides for increased sentences of attempted murders and misdemeanor physical alterations.
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Jan 21, 2024 14:55
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PhantomOfTheCopier posted:Hasn't "treason" already addressed all these concerns via SC opinions? They already clarified protest versus impeding the government. They've already defined opportunity and "conspiracy", and the burdens of proof. Well yeah but that doesn't carve out an exception for Republicans so they've gotta do that
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Jan 21, 2024 16:35
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PhantomOfTheCopier posted:Hasn't "treason" already addressed all these concerns via SC opinions? They already clarified protest versus impeding the government. They've already defined opportunity and "conspiracy", and the burdens of proof. i didnt know they were using the enron law to prosecute these people until relatively recently and yeah its easy to see why our friends in the mainstream media would try to omit that since sox was quite clearly not intended to be used for this purpose and you have to really stretch the literal meaning of its text to pretend that it even makes sense to use it like this in theory im honestly kind of surprised that only one lower level judge out of like sixteen was willing to say "this law obviously isnt supposed to be used for situations like this" but then maybe i shouldnt be since its not like judges are well known for treating any random thing a prosecutor pulls out of their rear end with skepticism
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Jan 21, 2024 18:29
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Tomorrow is the big day! Ready for all the nerds who actually expect the Supreme Court to save them from Trump to watch their hopes get dashed (yeah I know opinion won’t be same day, but I’ll bet the oral arguments are going to be pretty clear how it’s going) Personally I’m predicting a 9-0 “we aren’t touching this poo poo” decision which if it happens a lot of these nerds are going to have real hurt reactions
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Feb 7, 2024 20:10
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Plot twist - The only authority the EPA now has is to make sure that Trump is allowed to be on the ballot in every state.
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Feb 7, 2024 20:52
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they refuse to guarantee an economy
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Feb 8, 2024 01:23
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looking forward to absurd legal fights over personhood in the next few years: Alabama supreme court has ruled that frozen embryos are people and that a dude who dropped some on the floor cause his hand got too cold is liable under the state's wrongful death of a minor law.
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Feb 21, 2024 03:35
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Real hurthling! posted:looking forward to absurd legal fights over personhood in the next few years: Alabama supreme court has ruled that frozen embryos are people and that a dude who dropped some on the floor cause his hand got too cold is liable under the state's wrongful death of a minor law. Bonkers story wasn’t even on my radar quote:In 2021, a patient at Mobile’s Center for Reproductive Medicine wandered into the clinic’s cryogenic nursery and removed several embryos. According to the lawsuit, “the subzero temperatures at which the embryos had been stored freeze-burned the patient’s hand, causing the patient to drop the embryos on the floor, killing them”. But also wtf how and why
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Feb 21, 2024 04:00
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there's always going to be some rear end in a top hat wandering around touching stuff for no reason
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Feb 21, 2024 04:09
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and those embryos were Hitler 2, Hitler 3, Hitler 4
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Feb 21, 2024 07:35
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Smythe posted:and those embryos were Hitler 2, Hitler 3, Hitler 4 we release hitlers w 1 2 and 4 on them for senior prank
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Feb 21, 2024 08:22
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court passed on the vile rear end rent control case. very glad for this, as i would be homeless without rent control. thank you, court
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Feb 21, 2024 22:25
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Alito is sad that religious bigots might be seen as bigots. https://www.msn.com/en-us/news/us/s...iff/ar-BB1iAlGf quote:The Supreme Court on Tuesday declined to consider whether potential jurors in an employment dispute involving a lesbian worker could be excluded because of their religious views on homosexuality.
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Feb 21, 2024 23:55
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i really wanna live in the world where Clarence thomas takes John Oliver's money and steps down
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Feb 24, 2024 06:28
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The hallowed institution safeguarding the Domestic Supply of:
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Feb 24, 2024 17:12
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Stereotype posted:i really wanna live in the world where Clarence thomas takes John Oliver's money and steps down because you think it would be a better world or because you think it would be funny watching biden make excuses for why he cant appoint a new justice
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Feb 24, 2024 21:36
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Some Guy TT posted:because you think it would be a better world or because you think it would be funny watching biden make excuses for why he cant appoint a new justice It'll be Schumer, quoting Obama era McConnell about how the voters need to decide and refusing to hear the nomination first. Then Biden will come out in support.
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Feb 24, 2024 23:29
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lol they would reinstate the "mcconnell rule" and biden would be so happy
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Feb 25, 2024 00:01
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Some Guy TT posted:because you think it would be a better world or because you think it would be funny watching biden make excuses for why he cant appoint a new justice there’s a bunch of reasons it would be funny
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Feb 26, 2024 08:35
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PhantomOfTheCopier posted:Alito is sad that religious bigots might be seen as bigots. God hes such a whiny bitch. You've gotten everything you want!
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Feb 26, 2024 14:41
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https://twitter.com/nycsouthpaw/status/1762260925069902134
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Feb 27, 2024 02:14
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Feb 27, 2024 03:21
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nooooo
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Feb 27, 2024 03:28
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sir this is a scrotus
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Feb 27, 2024 03:43
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Justice Alito, turn on your monitor.
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Feb 27, 2024 22:34
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what's his account
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Feb 27, 2024 23:42
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oral arguments on the trump bump stock ban first thing in the morning 
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Feb 28, 2024 08:42
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Javid posted:oral arguments on the trump bump stock ban first thing in the morning I thought that was already overturned
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Feb 28, 2024 08:44
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overturned by two circuits but DC upheld it https://www.scotusblog.com/2023/11/justices-take-up-bump-stock-dispute/ quote:Two federal courts of appeals struck down the regulation. Under federal law, a machinegun is a gun that shoots multiple bullets “automatically” and “by a single function of the trigger,” or any accessory that allows a gun to do so. This definition, the U.S. Court of Appeals for the 5th Circuit ruled, clearly does not apply to bump stocks, which harness a rifle’s recoil to rapidly depress the trigger without the shooter having to pull and release his trigger finger. But even if the definition were not clear, the 5th Circuit continued, bump stocks should be excluded from the definition of “machinegun” under the rule of lenity, a doctrine that instructs courts to apply ambiguous criminal laws in the way that is most favorable to defendants. looking forward to them 9-0 upholding the 5th, written by Gorsuch
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Feb 28, 2024 08:49
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 us attorney admitting "feinstein was full of poo poo for political goals, actually" made my morning Javid has issued a correction as of 22:56 on Feb 28, 2024 |
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Feb 28, 2024 21:55
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  legalize it ✌︎︎ (USER WAS PUT ON PROBATION FOR THIS POST)
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Feb 29, 2024 02:03
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scotus gonna decide if Trump is immune from prosecution sometime in October lol
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Feb 29, 2024 03:56
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biden would just pardon him anyway
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Feb 29, 2024 04:25
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Didn't read!!!!!!!
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Mar 3, 2024 07:21
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Trump ballot ruling might drop tomorrow. Probably will since Colorado primary is Tuesday
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Mar 3, 2024 23:15
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