News

Aug 10, 2023

Supreme Court Could Throw Wrench Into Trump's Jan. 6 Indictment

Former President Donald Trump has been indicted for a third time, this time for his alleged role in the January 6, 2021, Capitol riot, but another case making its way through the legal system could

Former President Donald Trump has been indicted for a third time, this time for his alleged role in the January 6, 2021, Capitol riot, but another case making its way through the legal system could disrupt the latest indictment.

The Department of Justice (DOJ) on Tuesday announced four felony charges against Trump, accusing him of three conspiracies plus a fourth charge of obstructing or attempting to obstruct an official proceeding. The fourth charge is not new to at least 310 January 6 defendants who were also charged with obstruction of an official proceeding, and it's this charge that could be upended by a different case, should the U.S. Supreme Court decide to take it up.

The obstruction charge has been used against some of the most high-profile Capitol rioters, including Oath Keepers founder Stewart Rhodes and "QAnon Shaman" Jacob Chansley. It was also deployed against Edward Lang, a New York man whose attorneys have asked the Supreme Court to reconsider the obstruction charge, which they argue was applied too broadly in his case.

Norm Pattis, Lang's lawyer, told Newsweek that Trump's latest indictment only highlights how important it is for the high court to grant his client's petition.

"Under the Justice Department's current reading and use of 1512, I expect the department will bring this charge against Trump," Pattis said ahead of Tuesday's news. "Of course, that makes the First Amendment issues even more profound. The president made a political judgment about a stolen election: criminalizing that and calling it corrupt would turn a dark page in our history. "

Title 18, Section 1512 of the U.S. Code is titled "Tampering with a Witness, Victim, or Informant" and provides that an individual who "corruptly alters, destroys, mutilates, or conceals a record, document" or "otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so" can be imprisoned for up to 20 years.

"The obstructing an official proceeding charge is a favorite of Department of Justice officials prosecuting the Capitol rioters," former federal prosecutor and West Coast Lawyers President Neama Rahmani told Newsweek. "And Special Counsel Jack Smith has charged it in the most recent Trump indictment."

The petition sent to the Supreme Court last month said that there was reason to suspect that the DOJ's use of 1512 will "serve to chill political speech and expression on the eve of one of the most consequential events in American life – the election of the next President of the United States."

Although it's unclear whether the justices would grant the petition, the court currently features a 6-3 conservative majority, which includes three Trump appointees.

The Supreme Court has faced backlash for a series of controversial rulings since Trump's appointment of Justice Amy Coney Barrett to replace the late Justice Ruth Bader Ginsberg. Those rulings include the overturning of Roe v. Wade in Dobbs v. Jackson Women's Health Organization; the decision to strike down affirmative action in college admissions; and a ruling that sided with a Christian website designer who did not want to offer wedding websites for same-sex couples.

"If the conservative Supreme Court agrees to hear Lang's appeal, and if the High Court agrees with defense lawyers who argue that prosecutors and lower courts have interpreted 'corruptly' too broadly, then many of the rioters may have their convictions overturned and some of the charges against Trump may be dismissed," Rahmani said.

"The Supreme Court previously said the Honest Services Fraud statute was similarly over broad, and overturned convictions on that basis, so there is a possibility the same thing happens here."

Even if the justices decide to hear oral arguments in Lang's case—and rule in his favor, potentially upending hundreds of January 6 cases—Trump faces three other conspiracy charges that could still result in prison time. He has also been charged with conspiracy to defraud the United States, conspiracy to obstruct an official government proceeding and conspiracy to injure, oppress, threaten and intimidate people of their right to vote and to have their vote counted.

"Each of these conspiracies—which built on the widespread mistrust the defendant was creating through pervasive and destabilizing lies about election fraud—targeted a bedrock function of the United States federal government: the nation's process of collecting, counting and certifying the results of the presidential election," the indictment said.

Trump is also facing 40 felony charges in another federal indictment in the Mar-a-Lago confidential documents case, as well as 34 counts in a Manhattan indictment related to alleged hush money payments made to adult film actress Stormy Daniels.