Kimberly Wehle writes:

There’s been a lot of attention paid to the Supreme Court’s upcoming decision on Donald Trump’s claim of immunity from prosecution for actions taken while president, a judgment that will have big implications for the 2024 presidential campaign and special counsel Jack Smith’s indictment of the former president on charges related to Jan. 6. But there’s a sleeping giant of a case also percolating in the Supreme Court that’s even more likely than the immunity issue to impact Smith’s prosecution of Trump.

The case is Joseph W. Fischer v. United States, which the court agreed to hear in December, and which doesn’t explicitly mention Trump. At issue is whether prosecutors and the Department of Justice have been improperly using a 2002 law originally aimed at curbing financial crimes to prosecute a Jan. 6 defendant named Joseph Fischer. Should the court side with Fischer, it would also call into question the use of the law against other Jan. 6 defendants — including Trump.

Smith’s indictment contains four counts in total. Two of those are for obstruction of an official proceeding and for conspiracy to do so. Those crimes are part of a relatively recent criminal statute governing financial disclosures known as the Sarbanes-Oxley (or “SOX”) Act, which was enacted following the Enron corporate accounting scandal, and which makes it a crime to obstruct an official proceeding of the U.S. government. The Justice Department has so far used it to charge over 300 people involved in the Jan. 6 insurrection; more than 150 have been convicted of the offense following jury trials or pleaded guilty to it.

Many of these defendants, including Fischer, have argued that the “obstruction of an official proceeding” part of the SOX Act was only meant to apply narrowly to financial crimes similar to the ones that produced the law in the first place — and not as broadly as the Justice Department has used it in the Jan. 6 cases.

Courts across the country have already been wrestling with the question of whether the SOX Act’s obstruction provisions apply to the various means by which people tried to halt Congress’ examination and ratification of the presidential election results favoring Joe Biden. As of this month, at least 14 judges in 22 cases had backed DOJ’s interpretation. But some have expressed doubts after the Supreme Court agreed to hear Fischer’s case; in at least two of the Jan. 6 cases, trial judges have delayed the defendants’ sentencings pending the Supreme Court’s ruling on the issue, meaning the underlying SOX Act charges may be vulnerable. [Continue reading…]