Supreme Court Just Made Jack Smith's Job Harder

Special Counsel Jack Smith arrives to give remarks on a recently unsealed indictment against former President Donald Trump on August 1, 2023 in Washington, DC. Former federal prosecutor Neama Rahmani told Newsweek that for Smith "litigating the obstruction of a proceeding issue [in Trump's election interference case] unnecessarily is high risk with little reward."

Special counsel Jack Smith's prosecution of Donald Trump just got harder thanks to a new Supreme Court ruling that could upend the cases against hundreds of January 6 defendants.

On Friday, the Court issued its decision in Joseph Fischer v. United States, siding with Fischer, a former Pennsylvania police officer who was indicted in connection with his role in the January 6, 2021, Capitol riot. The decision narrowed the scope of the federal obstruction charge used in more than 300 prosecutions related to the riot.

Among those prosecutions is Trump's federal election interference case, in which he is accused of trying to subvert the results of the 2020 presidential race. Although Friday's decision is expected to undermine Smith's case against Trump, the special counsel had argued that Trump's obstruction charges would remain valid regardless of the Supreme Court's ruling in Fischer.

But even if Smith ultimately prevails, legal experts say, the justices' decision will likely bring a number of new filings and arguments from Trump's attorneys.

"The Fischer ruling is great news for Trump, just one day after his decisive win in the presidential debate," former federal prosecutor Neama Rahmani told Newsweek on Friday.

Rahmani, who is the president of West Coast Trial Lawyers, said the Court's decision sends Fischer's case back to the lower courts, asking judges to determine whether the Justice Department can prosecute the former officer under the new interpretation of the federal law. Now, he said, "the same question applies to Trump's fake elector scheme."

Rahmani said that while "Trump has been very litigious in his criminal cases, challenging and appealing many of the charges," Smith has been cautious about his charging decision related to Trump. Given the special counsel's approach to the two federal cases against the former president, Rahmani said, the Justice Department will likely dismiss the obstruction charges "to avoid the possibility of dismissal and guaranteed delays in the case."

"Smith may get a superseding indictment charging some other type of conspiracy that is settled law. But litigating the obstruction of a proceeding issue unnecessarily is high risk with little reward," Rahmani said.

Former federal prosecutor and elected state attorney Michael McAuliffe told Newsweek that while he doesn't think the Court's ruling will adversely affect Trump's indictment, Friday's decision could upend the prosecution. That's because Smith may have to change the way he goes about proving the elements of the obstruction charge against Trump.

New York–based criminal defense attorney Julie Rendelman told Newsweek that the prosecutors could still argue that Trump's actions in the case count as obstruction, but the ruling will require them to prove that they fit into the more narrowly construed interpretation of the law. She pointed out that even if the charge is eventually thrown out, it wouldn't be the end of the federal election interference case.

"The prosecution still has several felony charges they would continue to pursue, which carry potential lengthy sentences," Rendelman said.

Former federal prosecutor Shanlon Wu, however, told Newsweek that the Court's ruling won't affect Trump's case because the decision "leaves open charges based on creating false evidence, which is arguably what the false elector certificates were."

"This decision could overturn the conviction of some of the January 6 defendants, [but] it is not likely to affect Donald Trump's case because it involves fraudulent documents in the form of fake slates of electors," former U.S. Attorney Barbara McQuade told Newsweek. "In fact, the Court seems to go out of its way to note that the statute covers fraudulently created documents."

McAuliffe said the biggest impact of the Court's decision will be on the hundreds of people who have been charged with obstruction in the riot but not yet convicted and sentenced.

"The decision will reopen a potentially significant number of January 6th defendants charged with obstruction that didn't involve the physical document part of the electoral count process and the attempt to interfere with it," he said.

He went on: "The scope of the impact of the decision is uncertain, as it would be limited to those defendants who were charged with that particular subsection of the obstruction statute, were convicted of obstruction and appealed the conviction of that count. The decision likely would not affect guilty pleas to the obstruction violation, as those pleas involved waivers of any appeal of the conviction."

The nation is still waiting for the Supreme Court to make another decision that would directly affect Trump's case. With only one opinion day left, the justices are poised to rule Monday on the former president's claim he has absolute immunity from criminal charges.

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