Supreme Court consideration of obstruction law may not be Trump's salvation after all

Today the Supreme Court heard earlier arguments on a case that could determine the future of many January 6th defendants and even Donald Trump himself. At issue is a law prohibiting the obstruction of an official proceeding statute that the Justice Department is used to prosecute 1/4 of the January 6th rioters have been charged for their role in trying to stop the counting of electoral votes. It is also one of the charges brought against Trump by Special Counsel Jack Smith in his federal elections case. Lawyers for one of the January 6th insurrectionists argued that the statute was not meant to apply to circumstances like the January 6th insurrection, while the government argued that the January 6th attack is precisely what obstruction of an official proceeding looks like. There was one exchange between conservative Justice Samuel Alito and the US Solicitor General Elizabeth Pre Locker. So we’ve had a number of protests in the courtroom. Let’s say that today five people get up, one after the other, and they shout either keep the January 6 insurrectionists in jail or free the January 6 patriots. And as a result of this, our police officers have to remove them forcibly from the courtroom. Would that be a violation? I think it’s in a fundamentally different posture than if they had stormed into this courtroom, overrun the Supreme Court. Police, required the justices and other participants to pleat flee for their safety, and done so with clear evidence of intent. Absolutely. What happened on January 6 was very, very serious. And I’m not equating this with that. Joining us now is Mary McCord, former Acting Assistant Attorney General for National Security at the US Department of Justice and the Co host of the Prosecuting Donald Trump podcast. Mary, good to see you. Your sense of how the justices received these arguments today and if they gave any indication about which way they’re leaning, Well, we heard, I think, different concerns expressed by multiple different justices. And it’s really kind of hard to count noses. I think at this point. You just played an excerpt, of course, of Justice Alito trying to set forth, you know, a hypothetical to suggest that this application of the statute is too broad and could apply to something that I think Solicitor General Pelogher very, very well rebutted by saying. That’s not at all what happened here. This is not at all about the kind of violent attack on the Capitol with intent to disrupt the peaceful transition of power that happened here. But nevertheless, cases are decided based on how the law might apply in other situations. And I think the Solicitor General went on at various points to the argument to point out that de minimis types of things would not be covered because there is corrupt intent requirement and there are other requirements that that that mean it has to have been a serious intent with that corrupt intent, knowing your conduct is wrongful to actually disrupt, obstruct an official proceeding. But at the same time, we we saw other justices, including Justice Kagan. Justice Sotomayor pushed pretty hard on the defendants counsel Mr. Fisher’s counsel, suggesting that how could the clause that’s being applied here, which says otherwise obstructs, influences or impedes any official proceeding. How can that mean anything other than otherwise doing it in any form? He had wanted to argue it has to be limited to altering records or destroying records, and those justices said that’s not in the statute otherwise means otherwise. Then you had other justices, Amy Coney Barrett and even Kitanji Brown Jackson suggesting, well, isn’t there a middle Rd. here maybe where even if the otherwise clause maybe doesn’t apply in its natural form to a violent attack, couldn’t it apply where there was an effort here to preclude documents, those being the Electoral College vote, votes of the the certifications to be transmitted to the vice president to open them for counting, for Congress to count them and tabulate the votes and certify the election. So even if you want to limit this to documents or records, is there a way to do it? So it’s it’s hard to read the tea leaves right now. There are clearly some disagreements I’d say, between the Chief Justice and Justice Kagan, very clearly disagreements about how they think the statute should applies. But I I do think it’s important, and you’re probably going to go there next to say that whatever happens in this case does not necessarily dictate what will happen in the Jack Smith case brought against Donald Trump. Mary, you can’t be taking our producers jobs. You already have like 7. I have to admit that as a non lawyer, the fact that the word otherwise was the word in the statute that took up so much airtime today was was pretty surprising to me. OK, so to your point about Donald Trump, the lawyer for the January 6th defending argued that his client didn’t obstruct an official proceeding because doing so requires many calculating evidence or document in some way. So this is how he framed that argument. To Justice Barrett, take a listen. This statute prohibits operation on on specific evidence in some way, shape, or form. Attempting to stop a vote count or something like that is a very different act then actually changing a document, or altering a document or creating a fake new well, he’s obstructing evidence. So to recap, he’s saying there the creating a fake document would constitute obstruction of an official proceeding. If the justices agree with that interpretation, would that mean that Trump could still be charged over his role in getting fake electors to submit fake documents? I think the answer is yes now at all the devils and details and what the Supreme Court would say. But again one part of the multi pronged scheme that underlies the two of the charges in the Jack Smith indictment. 1 this same charge obstructing official proceeding. The other conspiracy conspiracy to obstruct an official proceeding. One of the major parts of that scheme is the fraudulent electoral scheme. This is a scheme between Mr. Trump as alleged and others to urge and in fact this is what happened that the electors in swing states who had uh intended you know to be Donald Trump electors went ahead met on the date that the Electoral College meets to vote. They cast their ballots even though he had not been certified the winner in the states. In those states, even though litigation there had bailed and Joe Biden had been certified the winner. They then sent their Electoral College certificates. These signed certificates up to the Capitol to Vice President Pence and to others in the hopes that he would count those votes as opposed to the legitimate electoral ballots that have been set up by the Biden, Harris electors. So even here, if the if the government’s able to prove this conspiracy they have charged, it wouldn’t involve exactly what Mr. Green today admitted, the creation of fake documents. These were fake Electoral College ballots. There are also, I would remind viewers, two other charges unrelated to this obstruction of official proceeding in the Jack Smith January 6th related indictment. And that is a conspiracy to defraud the United States and a conspiracy to deprive people of their civil rights. So even in the event that the Supreme Court would really go broad on a ruling that actually could draw, you know, call into question, the obstruction of an official proceeding counts in the Jack Smith indictment, it would not touch those other counts. So people can feel safe in that. You know, Mary, we always talk about how all of these cases are on a collision course. And today, no exception. Mary McCord, as always, thank you so much for your time.