Donald Trump's federal trial over allegations he attempted to overturn the 2020 presidential election, covering the January 6, 2021, attack on Congress by his supporters, will come down to one crucial "catch-all provision," according to former U.S. attorney Joyce Vance.
Vance and former U.S. attorney Preet Bharara were discussing on his podcast a legal dispute concerning the "obstruction of an official proceeding" charge, which was used against hundreds of January 6 rioters and is also one of the four charges Trump is facing in his federal election case. An appeal challenging the Justice Department's interpretation of this law, from January 6 defendant Joseph Fischer, has been selected to appear before the Supreme Court in a move that could upend hundreds of verdicts.
The dispute concerns the wording of 18 U.S. Code 1512, titled "Tampering with a witness, victim, or an informant."
This states that "whoever corruptly" either "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 "otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so" is committing a criminal offense the maximum sentence for which is 20 years in prison and a fine.
Fischer's case is focused on the word "corruptly," with critics of his conviction arguing he wasn't acting corruptly if he genuinely believed the 2020 presidential election had been stolen. If the Supreme Court finds in his favor, it could impact the cases of hundreds of other January 6 defendants, along with Trump in his federal election interference trial.
Vance noted the provision related to the destruction of documents, introduced following the shredding of papers during the Enron accounting scandal, wouldn't be relevant to Trump's case. However, she called the second a "clear catch-all provision that says 'anybody who otherwise obstructs an official proceeding,' and thus is relevant to the case."
"The issue, I think, the real issue in this case, comes down to this key phrase here is 'whoever corruptly.' I think this case will come down to what corruptly means in this context because that does modify 'whoever corruptly' otherwise obstructs, influences or impedes any official proceeding," she said on Stay Tuned with Preet.
Newsweek reached out to a legal representative of Donald Trump and his press team via email for comment.
Speaking to Newsweek, Neama Rahmani, a former federal prosecutor and president of West Coast Trial Lawyers, agreed that the definition of "corruptly" will be crucial and said the Supreme Court taking on Fischer's case could be good news for Trump.
"Corruptly obstructing an official proceeding is a newer statute passed after the Enron scandal and hasn't been extensively litigated until recently," Rahmani said. "The Capitol rioters argue that Congress certifying the electoral votes was not an 'official proceeding,' but courts have universally rejected that argument.
"This bigger question is what satisfies the 'corruptly' requirement. Is it any criminal conduct, such as trespassing in the Capitol building or submitting fake electors? Or does the corrupt conduct have to relate to the other subsections of 1512, which prohibit destroying or concealing evidence? If the corruption requires consciousness of guilt, then Trump can argue that he genuinely believed the election was stolen."
Rahmani noted that even if this count is dismissed, Trump faces three other charges. These include conspiracy to defraud the United States and conspiracy against rights. Trump has pleaded not guilty to all four charges.
"The United States Supreme Court agreeing to hear the Fischer case may bode well for hundreds of criminal defendants, including the former president," Rahmani said. "It is a novel legal issue, and that means at least four of the (likely conservative) justices agreed to review the case.
"But even if Fisher prevails and the Capitol rioters have their convictions reversed, Trump would still have to face prosecution on the other charges, unless the Supreme Court agrees that Trump has executive immunity in the separate case Jack Smith is appealing."
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