Now that the efforts to keep Donald Trump off the ballot were soundly rejected in the Supreme Court in Trump v. Anderson, the largest cloud over the former president’s re-election campaign is Jack Smith’s four-count indictment, which makes no reference to insurrection but alleges only “a conspiracy to corruptly obstruct and impede the January 6 [2021] congressional proceeding” to certify the election of the next president. Smith’s indictment cannot be read in isolation, for next month the Supreme Court will take argument in Fischer v. United States, which deals with the same section in Trump’s case, 18 U.S.C. § 1512(c), reading:

          (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.

These heavy sanctions explain why prosecutor Smith is trying to shoehorn Trump’s case into this section even though he had at his disposal, but did not bring, counts for civil disorder, assault, or entering and remaining in a restricted building. Thus this high-stakes battle over statutory interpretation must be read in the context of the facts that Fischer set out in his successful petition for certiorari.

Joseph Fischer, the man now before the Supreme Court, first entered the Capitol grounds on January 6 after Congress had gone into recess in light of the earlier threats, and he entered the building at 3:25 p.m. After he gone some twenty feet, he was pushed to the ground by the crowd; he got up, returned a pair of handcuffs to a police officer, and then was pushed into the police line, where he was promptly blinded by police pepper spray.  He left the building less than four minutes after entering. Section 1512(c) looks like massive overcharging. There is no evidence that he was part of a mob, or that his actions were not coerced by others. But nonetheless the operative charge in the complaint reads as follows:

On or about January 6, 2021, within the District of Columbia and elsewhere, [Fischer] attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15-18.

The question is whether the case falls within the second clause of Section 1512(c), an obstruction-of-justice provision. Fischer argued that the second clause was by the word “otherwise” necessarily tethered to the first clause, which was passed after the Enron accounting fraud scandal of October 2001 to close the loopholes dealing with the preservation of evidence pertaining to the case. The first clause of Section 1512(c) clearly serves that purpose, and the “otherwise” seems as a matter of ordinary English to be a backup provision to make sure that some novel scheme does not escape the law. That was the conclusion of District Judge Carl Nichols, who insisted on the close connection between the two clauses. Judge Nichols invoked the rule of lenity, under which criminal-law statutes are read narrowly both to give the accused clear notice of the charges against him and to constrain aggressive prosecutors. But in the District of Columbia Court of Appeals, Judge Florence Pan reached the exact opposite conclusion, treating the “otherwise” as separating the two clauses, so that the latter clause allowed for an independent corrupt obstruction to cover the case. Her view is now the law of the circuit. Yet, as Judge Justin Walker argued, Judge Pan had to be wrong in thinking that the section could be properly interpreted without addressing the term “corruptly,” which frames both halves of Section 1512(c).

Judge Gregory Katsas in dissent took a position similar to that taken in the District Court, so that the matter reaches the Supreme Court with three separate positions, with Trump’s indictments waiting in the wings.

So, what should the court do when it hears the case?

First, it should reject the incomplete summary of the facts offered by Judge Pan, which at no point mentions Fischer’s tardy arrival and prompt exit within a four-minute stretch. She wrote as if it were settled fact that he pushed his way into the police when he claims that he was pushed into them. She omitted any mention of the returned handcuffs and his hasty exit, allowing these matters to be re-examined at trial. But she did refer to obnoxious and foolish texts that he (like so many others) wrote to acquaintances before January 6, stating that “war” could ensue if Trump were kept out of office, and that Trump’s Democratic opponents deserved the “gallows,” without linking these texts to the events on the day. It is highly unlikely that these abstract statements count as unprotected speech under Brandenburg v. Ohio (1969) which requires that all prohibited inflammatory speech be (1) “directed at inciting or producing imminent lawless action” and (2) “likely to incite or produce such action.” Neither of those conditions is remotely satisfied here.

More disturbing is her reading of § 1512(c) as “unambiguous,” in face of several opinions that said the opposite. Worse still, she is unable to explain why prior to this case, no federal prosecutor sought to give that section a free-form reading on matters unrelated to financial affairs. It is dangerous business to give an initial aggressive reading in a highly charged case.

The mystery only deepens because she did not offer any close reading of the key adverb “corruptly.” Indeed, Judge Walker only concurred with her judgment because he thought that “corruptly” had to be read carefully in order to prevent the term from having a “ ‘breathtaking’ scope [which] is a poor fit for its place as a residual clause in a broader obstruction-of-justice statute.” But he then attaches a meaning to “corruptly” that equates it with acting “with an intent to procure an unlawful benefit either for himself or for some other person.” Too broad: this reading is jumping from the frying pan to the fire.

Corruption is a subset of unlawful cases. To shoot someone is unlawful, but corruption is never part of any murder charge. In general, the entire class of criminal trespasses are not corrupt either. Corruption requires that the actor in question seek to disrupt some business or deal. To speak of inducement of breach of trust or bribery as corrupt is part of the English language, but to speak of physical obstruction as corrupt mangles the vernacular so that obstruction of justice in Fischer has to refer solely to his entry, which was illegal but not corrupt. Nor was it linked to any effort to bribe or deceive anyone who was in charge of the vote count. And given his tardy entry, it is hard to link him in any way to others who might have sought to engage in improper influence. So, prosecute on the lesser offenses.

My prediction therefore is the Supreme Court will not spring for the broader reading of corruption. In the earlier case of Yates v. United States (2015), a divided court held under a similar statute that a commercial fisherman who threw back an undersized red grouper did not violate a statute that punishes for twenty years a person “if he knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” to impede a federal investigation. A tangible object for these purposes is an evidentiary object, not a stray fish, and the parallel to Fischer is close.

A correct reading of Section 1512(c) torpedoes a key part of the Smith indictment.  Previously, Smith lost big in McDonnell v. United States (2016), when a unanimous Supreme Court vacated a conviction for overreading a statute that allowed for prosecution of official acts, which did not cover introducing well-heeled private parties to important public figures. The outcome in McDonnell will not be lost in Smith’s application of Section 1512(c) to Trump’s case, which is far weaker than in Fischer.  Trump never entered the Capitol building, and he never made any statement urging rioters to enter the building. His despicable conduct consisted of watching the proceedings before asking the rioters and trespassers to leave the premises, which does not count as obstruction under any legal authority of which I am aware. His call for people to “fight” for their rights is certainly an incitement, but to protest, and cannot be read as a call for illegal action. Smith had lesser charges to bring against Fischer, but he does not have that luxury on this record.

So, if this prediction is correct, then Smith should fold his tent on this key count. And his other main charge is a far-out case of defrauding the government under a statute that is aimed at various financial shenanigans, none of which are involved here. Politically, Smith needs to make a powerful case if any conviction regarding January 6 is both to appear and to be legitimate. That just won’t happen on this flimsy indictment.

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