Supreme Court may seek 'middle position' in case that could toss some Trump charges: WaPo

The Supreme Court needs to decide if the January 6 defendants can be charged with obstruction — and they may ultimately pursue a "middle position" solution, The Washington Post editorial board wrote on Friday.

This comes after an oral argument in an appeal by a defendant this week in which many of the justices appeared hesitant about the government's position — and many observers slammed Justice Clarence Thomas for not recusing himself from the case because his wife was involved in the effort to overturn the 2020 election.

In the case in question, Fischer v. United States, the board noted, "The defendant, a former police officer named Joseph Fischer who participated in the riot at the U.S. Capitol, is challenging the Justice Department’s choice to charge him under a federal statute that makes it a crime to obstruct or impede an official proceeding — in this instance, Congress’s certification of Joe Biden’s 2020 victory — because the law was devised to punish evidence tampering, not his Jan. 6, 2021, conduct. The law also allows the government to seek up to a 20-year sentence."

If the justices rule in favor of Fischer, it could make hundreds of charges against January 6 defendants ineligible, forcing some to be resentenced or retried, and potentially affect two of the four charges special counsel Jack Smith filed against Trump in his D.C. case — although it is not a purely clear cut case, the board noted.

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For instance, could the charges apply to protesters who block a bridge and ultimately delay members of Congress from getting to a vote? Or hecklers who shout down Congress?

Ultimately, the key difference might be the intent, the board wrote. "A lot of [January 6 rioters] knew that they were illegally entering and vandalizing the seat of government, and a lot of them knew that they were doing so in pursuit of an end that was also illegal. This could result in a reasonable middle position on the law, much like the one laid out by Judge Justin R. Walker of the D.C. Circuit almost a year ago: that for the statute to apply, a defendant must both know he is obtaining an unlawful benefit and act with the purpose of obtaining that unlawful benefit."

If this standard is applied, the board wrote, many of the rioters would still be on the hook for obstruction, but some might be able to get those charges dropped — including Trump himself.

Even if that were to happen, though, two other charges against Trump would still apply.

Regardless, the board concluded, "The Supreme Court faces and has faced other cases involving Mr. Trump with easy answers that cut clearly in one side’s favor. This one is different."