What If SCOTUS Tosses a Key January 6 Felony?

The highest court could decide by the end of the month to take up DOJ's use of 1512(c)(2), the most common felony in J6 cases and one of Special Counsel Jack Smith's counts against Donald Trump.

A nonstop flurry of motions and orders now clutters the court docket for USA v. Trump, Special Counsel Jack Smith’s case against the former president related to the events of January 6.

Smith, at least for appearances, is driving hard toward the March 2024 trial date set by U.S. District Court Judge Tanya Chutkan. Next week should produce plenty of fireworks as both sides argue over a proposed gag order to silence Trump, his campaign, and his lawyers.

But Smith is up against another deadline, one that could prove fatal to one of four counts in his meandering 45-page indictment: a petition pending before the Supreme Court to overturn the application of 1512(c)(2), obstruction of an official proceeding, in January 6 cases.

More than 300 individuals, including Trump, have been indicted on that count for their alleged role in delaying the certification of the 2020 election on January 6. Dozens have pleaded guilty or been found guilty at trial.

Defendants include protesters who were not in Washington or never entered the building—Trump, of course, never set foot on Capitol Hill—but convictions nonetheless often result in excessive prison sentences.

For example, Jacob Chansley, the so-called “QAnon Shaman,” finally pleaded guilty to obstruction after spending more than 300 days in solitary confinement denied release by a federal judge, who then sentenced him to 41 months in jail.

While it represents the heart of DOJ’s ongoing “Capitol Breach” prosecution—enabling the government to turn otherwise misdemeanor cases into felony ones—the law never was intended to criminalize political dissent. As part of the 2002 Sarbanes-Oxley Act passed in the aftermath of the Enron scandal to address corporate malfeasance, 1512(c)(2) reads as follows:

(c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise 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.

One Judge Upended the Government’s Charge

When faced with defense motions to dismiss the count, every judge upheld DOJ’s use of 1512(c)(2) with the exception of Judge Carl J. Nichols, a Trump appointee. Nichols granted motions to dismiss for three defendants also charged with assaulting police by concluding the government’s interpretation of the language was too broad and contrary to the law’s original intent.

In his March 2022 order dismissing the count against January 6 defendant Garret Miller, who pleaded guilty to the other counts against him, Nichols wrote that “1512(c)(2)...requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”

After prosecutors asked Nichols to reconsider—only to receive the same response—the government appealed his decision.

But an opinion issued by the Court of Appeals in the District of Columbia last April offered little clarity. A three-judge panel reached what one judge called a “splintered” ruling to reverse Nichols. Writing for the tenuous majority, Florence Pan, appointed by Joe Biden, admitted that “outside of the January 6 cases brought in this jurisdiction, there is no precedent for using 1512(c)(2) to prosecute the type of conduct at issue in this case.”

Pan nonetheless claimed the language was “unambiguous” and did not require the involvement of “investigations and evidence.” Judge Justin R. Walker, a Trump appointee, reluctantly sided with Pan based on his interpretation of the word “corruptly.”

“If I did not read ‘corruptly’ narrowly, I would join the dissenting opinion. I would give ‘corruptly’ its long-standing meaning. It requires a defendant to act ‘with an intent to procure an unlawful benefit either for himself or for some other person.’ Because I read ‘corruptly’ as courts have read it for hundreds of years—and only because I read it that way—I concur in the Court’s judgment,” Walker wrote.

But Judge George Katsas strongly disagreed with his colleagues in a 43-page dissent. He joined Pan in noting the DOJ’s unique use of the statute. “1512(c)(2) has been on the books for two decades and charged in thousands of cases—yet until the prosecutions arising from the January 6 riot, it was uniformly treated as an evidence-impairment crime.”

Further, Katsas wrote, “document destruction readily conjures up images of corporate fraud. Advocacy, lobbying, and protest do not.” DOJ’s application of the statute “dramatically broaden[s] what counts as obstruction in the first place, sweeping in all acts that affect or hinder a proceeding. Among other things, that construction would sweep in advocacy, lobbying, and protest—common mechanisms by which citizens attempt to influence official proceedings.”

Katsas also weighed in on the meaning of “corruptly,” arguing it “require[s] that the defendant seek an unlawful financial, professional, or exculpatory advantage.”

And he observed that courts “had no occasion to consider” the broad reach of the statute before the January 6 prosecution.

That will change dramatically if the Supreme Court takes up a writ of certiorari filed in July by Nicholas Smith, a New York defense attorney who represents several January 6 defendants including Garret Miller. (Norm Pattis, a defense attorney representing Jacob Lang, one of the three defendants involved in Nichols’ decision, also has filed a petition before the high court.)

In short, Smith is asking the justices to review the circuit court’s “deeply divided triad of opinions” to determine whether 1512 (c) “cover[s] only acts that affect the integrity or availability of evidence, or whether they criminalize advocacy, lobbying and protest.”

“Adding to the complication, both the concurring and dissenting opinions agreed that the government’s novel construction of Section 1512(c)(2) in the January 6 cases would create a breathtakingly broad, vague and unconstitutional provision that trespasses on core First Amendment rights, including the fundamental right to petition the government for a redress of grievances,” Smith wrote.

Smith also warned about the long-term consequences if the circuit court opinion holds. “Hundreds of political protesters have been mistakenly exposed to Section 1512(c)(2)’s 20-year statutory maximum sentence; protected political expression in the Nation’s Capital, and ordinary legislative business, are at stake.”

A Decision With Serious Consequences

U.S. Solicitor General Elizabeth Prelogar has until the end of the month to respond, meaning the court could decide in the next few weeks to grant the petition. (Only four justices need to agree.) The website SCOTUSblog, which covers activity at the court, recently listed Smith’s case as one to watch.

Which brings us back to the other Smith. If the court signals an interest in taking up the matter, Trump’s lawyers will undoubtedly ask Judge Chutkan to dismiss the count against the former president. (They probably will regardless but a pending hearing before the nation’s highest court offers more leverage.) If she refuses to dismiss the count, Smith, who already has a spotty record of prosecutorial success, will have to decide whether to take a risk and proceed with prosecuting Trump on a charge with such a dubious legal basis.

Additionally, reverberations would extend beyond the Special Counsel’s office. What if the Supreme Court ultimately overturns the appellate court and rules that DOJ inappropriately used 1512(c)(2) in more than 300 cases? What about the men and women considered convicted felons on that count alone, or those who languished in prison under pretrial detention orders awaiting trial? Or the defendants currently sitting in jail?

Finally, the Supreme Court has an opportunity to right many of the wrongs related to the abusive, selective prosecution of Capitol protesters. Let’s hope they do.