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Download the Viator app now to use code VIATOR10 for 10% off your first booking in the app. Regret less. Do more with Viator. Hey, everyone. Ellie here. Happy Friday after a wild and really unexpected...
week in legal news. Here's how surprising the week was. So a little behind the scenes. At CNN, they recognize, I think properly, that it's really difficult to get people out to tape the January 1st New Year's morning show. And so they have some of us pre-record certain segments. I don't think I'm giving away any state secrets here. And so they had me earlier in the week pre-record a couple segments about biggest legal stories in the news. I
of 2023 and what we're watching for in 2024. About 48 hours later, I basically crossed emails with the producer and we both said, yeah, we're going to have to re-record those because so much had changed that it really impacted the entire landscape looking ahead to 2024. So today we're going to talk about one of those very big developments. Hope you enjoy it. As always, please send us your thoughts, questions, comments to letters at cafe.com.
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Jack Smith is in a tough spot. In a surprise move this week, the Supreme Court granted review of the prosecution of Joseph Fisher. That's a name you haven't heard, I'm sure. But he's a January 6th defendant who exhorted his fellow rioters to charge the Capitol and physically clashed with police at the scene. The Fisher case could upset DOJ's prosecutions of dozens of January 6th defendants, including one Donald John Trump.
Here's the issue. The Justice Department charged Fisher and other Capitol rioters with obstruction of an official proceeding. On its face, that obstruction law applies broadly to anybody who seeks to, quote, corruptly obstruct, influence, and impede an official proceeding, end quote. DOJ's theory was, in essence, that the meeting of Congress to count up the electoral votes on January 6th counts as an official proceeding,
And that by storming the Capitol, Fisher and others sought to prevent or delay that governmental function. Seems straightforward on its face. I'm on board. So too are most federal judges who've reviewed the issue. Fisher and others similarly charged January 6th defendants have challenged application of the obstruction law to their cases.
They've argued, in essence, that the obstruction law should apply only narrowly to textbook tampering with witnesses or evidence in criminal or civil legal proceedings and not to the rioting at the Capitol on January 6th. Again, folks, I'm not buying this, but I'm also not the judge here.
Fisher had some temporary success in the lower courts. The district court judge actually ruled in his favor, tossing out the obstruction charge. But the Court of Appeals then reversed and reinstated his conviction by a two to one vote. Fisher came close. But to date, no January 6th defendant has succeeded in getting an obstruction charge thrown out.
And that's why it's so noteworthy that the Supreme Court has now decided to take Fisher's case. There's no split of opinion in the lower courts. They've all reached the same conclusion. The obstruction statute fits January 6th. We don't know what the Supreme Court will do, of course, and it only takes four justices to grant review, but five justices to issue a ruling. But as a general proposition, the Supreme Court doesn't take up cases just to tell the lower courts, hey, nice job, everyone below. You've all gotten it right.
Also, consider that over the past decade or so, the court has trended heavily towards narrowing, not expanding, the scope of federal criminal laws. Since 2016, we've seen the court, on a largely cross-ideological basis, strike down convictions of the former Virginia governor, of two defendants in the Bridgegate case, of a top aide to the former New York state governor, and of top New York legislators, all based on narrow constructions of the charged criminal offenses.
So if the court indeed throws out Fisher's January 6th conviction for obstruction, brace for a seismic ripple effect. Dozens of January 6th Capitol rioters will have their convictions reversed too. Now, this would not necessarily result in an immediate emptying of the prisons. Many rioters were also convicted of other offenses, including trespass, assault, or destruction of property, all of which would still stand.
Perhaps of even greater moment, Jack Smith's case against Donald Trump would take a major hit. The special counsel charged Trump with four counts total in this case. Two obstruction counts, one for actual obstruction and the other for conspiracy to obstruct, and then two other counts, one for conspiracy to defraud the United States and another for conspiracy against the rights of American voters.
If the Supreme Court rules in favor of Fisher and throws out his obstruction conviction, then Smith's two obstruction charges against Trump, they'll be wiped out as well. Note, by the way, that the obstruction charges are the most serious in Smith's case. They carry 20-year maximums, while the other charges carry 10- and 5-year maximums. So what does Jack Smith do now?
He's got three options, and none of them are great, though each does offer a potential pathway to salvage some of the case.
First, Smith can proceed with his trial as scheduled in March 2024 or as soon as possible if that date moves and then hope for the best from the Supreme Court. The risk, however, is that if Smith first gets a trial conviction on Trump, but then the Supreme Court rules that the obstruction statute does not apply to January 6th, then any conviction of Trump on obstruction would have to be reversed, too.
and a conviction of Trump on the other non-obstruction charges could be in jeopardy too on the theory that the invalid obstruction charges tainted the overall trial. This, in my view, is too great a risk for Jack Smith to take, and I don't think he'll go this route.
Second, Smith can preemptively drop his own obstruction charges and then proceed to trial on the two remaining non-obstruction counts, the conspiracy counts. That's the safest, most conservative, lowercase c, approach, but it carries major downside. A voluntary dismissal by Smith will be widely perceived as a sign of weakness, as a compelled concession of a devastating legal setback.
Imagine the victory lap Trump will do if Smith gives up his two most serious charges in the case. Well, folks, it's official. Even Jack Smith now admits that he overcharged me and that his top charges against me were bogus. And that, folks, is the PG-rated, factually accurate spin. Imagine how bad it'll really get coming from Trump himself.
Add in the fact that Smith, by all accounts, is fanatically aggressive and competitive, and I just don't see this one happening either. And that brings us to the third option. Smith can wait until after the Supreme Court rules on the Fisher case and try his case then.
This way, he'll know either way. Either the court rules that the obstruction charges do apply to January 6th, in which case Smith can keep his indictment as is with all four charges intact, or the court strikes down the obstruction charge, in which case Smith can proceed to trial on the other two counts.
The big issue here, of course, is timing. In the ordinary course, the court wouldn't rule on a case of this nature arising so late in the term until the very end of the term in June or July 2024. Smith simply cannot afford to wait that long and still get the trial in before the election in November. There's no way Smith can realistically start a Trump trial in, let's say, August 2024, carrying through the entire heart of the general election campaign in September and October and
and then up to and potentially through Election Day in November. That's just not happening. The solution, or the partial solution, is for DOJ to request that the court grant expedited review of the Fisher case. In that scenario, the court might be able to rule by, let's say, early spring of 2024. That would certainly wipe out the March 4th trial date, but it could still
still allow Smith to start a trial in late spring or perhaps early summer. That would, of course, have the collateral effect of bumping back the Mar-a-Lago classified documents trial, which is currently slated for May of 2024. It's all a massive game of dominoes.
Over the past year, I've faulted Smith at times for some of his moves, so generally I've agreed with his tactics and his approach. This one is genuinely not his fault. It seemed logical and straightforward to apply the obstruction statute to the January 6th attack. I didn't hear a single credible expert or a commentator opine that such charges wouldn't stick, and the vast majority of federal judges who considered the issue have come to the same conclusion.
But the Supreme Court will do as it pleases. And now Jack Smith has a mighty conundrum on his hands. Thanks for listening, everyone. Stay safe and stay informed.
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