Of all the administrations in recent history, none has been more adept at using lawfare as a weapon against political opponents as the Biden administration.
From parents at school boards to colluding with social media giants, the Biden DOJ has used and abused the system for their own political benefit at the expense of thousands of Americans exercising their First Amendment right to dissent with the administration.
But, according to an opinion piece in Politico by Baltimore School of Law professor and author of “How to Read the Constitution — and Why” Kimberly Wehle, some of these misuses of the system may be coming to light.
According to Wehle, the Supreme Court recently agreed to take up a case that could have huge implications for the prosecution of the Jan. 6 Capitol incursion cases.
The case, Joseph W. Fischer v. United States, involves a Jan. 6 defendant named Joseph Fisher, who was one of over 300 people charged with felony obstruction under section 1512(c)(2) of the 2002 Sarbanes-Oxley Act for his alleged actions of interfering with Congress’s electoral vote counting process that day.
According to Newsweek, Fischer is a former Pennsylvania police officer who, according to the government, had a physical encounter with another police officer during the incursion.
The Sarbanes-Oxley Act makes it a felony to “corruptly” obstruct “any official proceeding,” punishable by up to 20 years in prison, Wehle wrote.
However, Fischer’s attorneys argue that the law was only meant to cover obstruction in the financial context, not events like Jan. 6, 2021.
At issue is whether prosecutors & DOJ have been improperly using a 2002 law originally aimed at curbing financial crimes to prosecute a Jan. 6 defendant. Should the court side w/Fischer, it would also call into question the use of the law against Trump. https://t.co/Hgsnrs0GFD
— Ford O’Connell (@FordOConnell) January 17, 2024
Wehle says the law was passed on the heels of the Enron era’s accounting scandals and was primarily designed to crack down on document shredding and other fraudulent activities used to cover up financial misconduct.
But the government has applied this act too broadly against Fischer and other Jan. 6 defendants for temporarily shutting down legislative sessions.
Fischer’s attorneys argue that it represents a distortion of the statute’s purpose.
The article refers to the Fischer v. United States case as a “sleeping giant” because while it has not received as much public attention as Trump’s claim of presidential immunity, it potentially carries even greater implications for the prosecution of Trump and other Jan. 6 defendants.
Some judges have started questioning the prosecution’s interpretation of the law now that the Supreme Court has decided to take up the case, and at least two trial judges delayed sentencing on Jan. 6 cases after the Supreme Court agreed to take this case.
A ruling on Fischer’s case could be expected by June.
Given the Supreme Court’s interest in the Fischer case, the author of the Politico piece says Special Counsel for the United States Department of Justice Jack Smith has some complicated legal gymnastics to do.
Smith could decide to move forward with the trial on all four charges against Trump starting March 4, even before the Supreme Court rules on the Fischer case. This risks two of those charges later being overturned if the Supreme Court sides with Fischer in his case.
Will Trump beat the charges against him?
In that case, Smith would have to retry the case against Trump, which would be chaos given all the politics surrounding prosecuting a former president twice.
Alternatively, Smith could go to trial on just two counts, dropping the obstruction charges until after the Fischer ruling. But this lowers the chance of conviction, and the remaining counts require proving conspiracy. It would be a huge win for Trump.
Trump did not seem to be leaving anything to chance, going forward with his presidential immunity appeal in the D.C. Circuit Court of Appeals, where oral arguments began on Jan. 9, according to Axios.
Trump confirmed via Truth Social last week that he would attend the hearing in person, writing, “I will be attending the … Federal Appeals Court Arguments on Presidential Immunity in Washington, D.C., on Tuesday. ”
Meanwhile, Jack Smith may be having a little trouble sleeping at night as this giant he never considered starts to raise its head.
And, Jan. 6 defendants convicted under the same financial law may be feeling a little more hopeful, too, as the Supreme Court makes its deliberations.
