Bonus 57: January 6 Reaches the Supreme Court

The justices weren't going to be able to duck January 6-related legal questions forever. Here's a closer look at two new developments—both of which suggest that they may be ready to dive in.

[Note: Today’s post is being cross-posted, with my thanks, via Lawfare.]

Welcome back to “One First,” a twice-weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. Usually, the Thursday issues is reserved for bonus content for paid subscribers, as opposed to the free content that comes out every Monday. But given the developments of the week, it seemed appropriate to do a second free post—this one focused on the two very different January 6 cases in which the Court has acted since Monday. I hope that you’ll consider a paid subscription if you don’t have one already, but either way, read on.

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The News: United States v. Trump and Fischer v. United States

Before getting to the implications, let’s start with what actually happened. On Monday, Special Counsel Jack Smith filed a petition for a writ of certiorari “before judgment” in the prosecution of former President Trump for his efforts to subvert the results of the 2020 election—asking the justices to resolve, at this preliminary juncture, whether President Trump is immune from such a prosecution. (Judge Chutkan had ruled on December 1 that he is not, and Trump had appealed to the D.C. Circuit—which is what made it possible for Smith to ask the justices to leap-frog the court of appeals.) Smith also formally moved the Court to “expedite” its consideration of the petition—asking the justices to order Trump to respond by next Monday (December 18).¹ The goal, as the filings made clear, was to have the Supreme Court resolve Trump’s immunity as quickly as possible—to settle, one way or the other, whether the criminal trial can go forth next year.

By a little after 5 p.m. ET on Monday afternoon, the Court granted Smith’s motion to expedite (which takes five votes), and ordered Trump to respond by 4:00 ET next Wednesday (December 20). This is not the Court agreeing that it will grant certiorari before judgment, but it is the Court moving at what, for it, is a lightning-quick pace to decide whether to grant certiorari before judgment and hear the appeal perhaps as soon as January. (I can’t remember the last time the Court responded to a motion on the same day it was filed other than in the context of an eleventh-hour challenge to an execution.) We don’t (and won’t) know when the Court will rule, but it’s distinctly possible that the Court will either grant or deny Smith’s petition before the holiday break, i.e., by the end of the day on Friday, December 22.

Then on Wednesday, the Court granted a more conventional cert. petition in Fischer v. United States—a criminal prosecution arising out of January 6. Here’s the question presented in the Fischer petition:

Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering”), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence?

Media outlets, especially those more sympathetic to the January 6 rioters, were quick to portray this second development as a major victory for the January 6 defendants—and a potential referendum on the breadth of one of the more common charges that federal prosecutors have brought against the hundreds of individuals who have been prosecuted or are awaiting prosecution for their role in the day’s events—including former President Trump. As I’ll explain in more detail below, I’m a bit more circumspect about this case, at least largely because of the Court’s (apparent) refusal to grant the two related cases that had been decided with it together in the D.C. Circuit. To make a long story short, I think the Court may have granted Fischer to decide a more marginal issue in the January 6 cases—one that, however it’s resolved, might not have broad implications for the Trump case specifically, even if it affects some of the other cases against January 6 rioters.

Finally, at least for now, there’s no hint that the Court is expediting its review in Fischer—meaning that, barring some intervening change, it would be argued during the Court’s April 2024 argument session, with a decision by the end of June (but likely not much earlier).

So that’s what’s happened thus far this week to bring January 6 to the Court. The harder question is what we should make out of these developments—and whether we should read anything into their adjacent timing. Let’s turn to that.

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The Trump Case and Certiorari “Before Judgment”

Since 1925, the Supreme Court has had the power to grant certiorari “before judgment” to cases in the federal courts of appeals—i.e., to take up a dispute before the court of appeals has done so. (The justices have no corresponding power over state courts.) By the Supreme Court’s own Rule 11, such a writ “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” And, at least until 2019, the Court’s behavior reflected its rarity. According to data compiled by my University of Texas School of Law research assistant David Merlinsky and me, the Court had granted “cert. before judgment” 30 times in 94 years up to 2019—including in major constitutional cases like the military commission of Nazi saboteurs; the Steel Seizure case; the Watergate tapes case; the Iranian hostage case; and so on. The Watergate tapes case is perhaps the closest comparison to Trump’s case, although you could argue that whether a sitting President must comply with a grand jury subpoena in a pending criminal case is even more urgent than whether a former President can be prosecuted at all.

But any argument that the Trump case doesn’t meet the historical criteria for leap-frogging the court of appeals runs into the Court’s practice since 2019—which has been to grant cert. before judgment far more often. Since February 2019, the Court has granted cert. before judgment 19 times (including, it should be noted, in five cases in which it was the Trump administration seeking such expedited review). And even if some of those cases came close to meeting the traditional criteria for such extraordinary review, many of them quite clearly did not—such as the case in which the Court granted cert. before judgment to ensure that a federal prisoner could be executed before President Biden came to office five days later. All of this is to say, it sure seems like the Court’s traditional criteria for bypassing courts of appeals has … softened.

Of course, a case still has to be “in” the court of appeals before cert. before judgment can be sought. And that explains the timing here: Smith was waiting for Trump to file his appeal of Judge Chutkan’s ruling rejecting Trump’s two claims to immunity: that the Constitution forbids criminal prosecutions of the same crimes for which a former official was acquitted in a Senate impeachment trial; and that the absolute immunity from civil liability that attaches to acts of a sitting President within the “outer perimeter” of his official duties also extends to criminal liability. Once Trump filed his appeal late last Thursday, Smith was free to ask the Court to take the issue up now—without waiting for the D.C. Circuit’s views on the question.

As for why the Court might feel impelled to grant cert. before judgment, there’s almost no way that the justices could resolve Trump’s immunity this term if the D.C. Circuit goes first. So if there are enough justices who believe that the Court should take this issue up one way or the other and who want to resolve it in time for a prosecution to go forward before the election (assuming they rule against Trump) then it makes sense to move quickly. Otherwise, Trump could win just by running out the clock. Cert. before judgment, on an expedited basis, would thus preserve the Supreme Court’s ability to not just settle Trump’s immunity, but to ensure that its ruling can have an impact.

Of course, there may not be enough justices who see the matter that way. And so it’s possible that the Court denies cert. before judgment, albeit almost certainly with a statement about how the denial is without prejudice to granting after the D.C. Circuit rules (and encouraging the D.C. Circuit to move very quickly). But if I were a betting man, the speed with which the Court already moved to grant the motion to expedite strikes me as a sign that there are enough justices interested in settling this issue sooner, rather than later

As for how the Court might settle it, the acquittal/double jeopardy argument is borderline frivolous. There are surely nine votes on even this Court for the proposition that impeachment trials are not criminal proceedings, and so regardless of their outcome, they don’t preclude subsequent criminal trials arising out of the same conduct. (All the more so where, as here, some of the votes to acquit were based on the incorrect view that a former President couldn’t be impeached in the first place.)

I continue to believe, for reasons I’ve written about before, that Nixon v. Fitzgerald doesn’t and shouldn’t extend to criminal prosecutions (as OLC concluded back in 2000). But even if it does, I think Judge Chutkan made a powerful case for the conclusion that the conduct for which Trump is being prosecuted in D.C. was outside the “official perimeter of his official duties”—it was the conduct of a candidate for office, not a President discharging his duties as President. (See also the D.C. Circuit’s similar discussion in its ruling last Friday in Blassingame.) Either way, we’d end up in the same place: Trump would be subject to trial for his efforts to subvert the election results before and on January 6.

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The Fischer Case and the Scope of § 1512(c)(2)

If that’s all that happened this week in this space, the narrative would be straightforward. But things got a bit more complicated on Wednesday, when the Court granted a conventional cert. petition in Fischer.

Fischer is one of three cases that a divided D.C. Circuit panel resolved in a consolidated opinion back in April. As Judge Pan summarized for the majority,

the question raised in this case is whether individuals who allegedly assaulted law enforcement officers while participating in the Capitol riot can be charged with corruptly obstructing, influencing, or impeding an official proceeding, in violation of 18 U.S.C. § 1512(c)(2). The district court held that the statute does not apply to assaultive conduct, committed in furtherance of an attempt to stop Congress from performing a constitutionally required duty. We disagree and reverse.

To understand the dispute, and why the court of appeals divided, it will be useful to start with the full statute at issue. Under 18 U.S.C. § 1512(c),

Whoever corruptly—

(1) 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

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

Note how (1) and (2) play off each other. Read in the abstract, (c)(2) is a remarkably broad obstruction provision arising out of any “corrupt” obstruction of “any official proceeding.” But (c)(1) seems to have a more limited compass—focusing on the impairment of evidence to prevent the evidence from being used in that proceeding. Thus, a number of the January 6 defendants charged with violating (c)(2) have argued that (c)(2) applies only if there’s some connection to the kind of evidence impairment contemplated by (c)(1). And in the three cases consolidated before the D.C. Circuit in Fischer, the district court agreed—and dismissed those charges.

On appeal, the D.C. Circuit reversed. Although Judges Pan and Walker disagreed as to whether the court of appeals had to define the appropriate mens rea (“corruptly”), they agreed that the actus reus did not require a connection to evidence impairment, and thus agreed that 1512(c)(2) is a general obstruction provision. In other words, as long as a defendant acted corruptly (which Walker’s concurrence defines as one who acts “with an intent to procure an unlawful benefit either for himself or for some other person”), they can be charged for obstructing the January 6 Joint Session by violently entering the Capitol even if their obstruction had nothing to do with specific documents or evidence before the Joint Session. That was the point on which Judge Katsas disagreed.

In other words, the three cases have two different issues baked into them: The mens rea question (what does it mean to “corruptly” obstruct an official proceeding) and the actus reus question (does the obstruction have to specifically relate to evidence or other documents connected to that proceeding).

Here’s where things get weird: All three defendants filed cert. petitions challenging the D.C. Circuit’s decision. The Department of Justice filed a single, consolidated brief in opposition—and the Court’s website used to reflect that the three cases had been “vided” (meaning that they were being considered alongside each other). Thus, it’s really strange that the Court granted Fischer, but not Lang and Miller. (And then quietly removed the notation from Fischer’s docket page that the case was tied to Lang and Miller.) Yes, the Court often holds parallel cases for a lead case, but not after both the court of appeals and the government had already consolidated them.

Part of why it’s weird is because all three petitions raise the question presented in Fischer—the actus reus question. The other two petitions also raise the mens rea question (and Fischer does not), but if the Court was interested in answering the actus reus question in general (and only the actus reus question), it could easily have granted all three petitions only on that question.

Otherwise, the only difference I can readily discern between Fischer and the other two cases is that Fischer entered the Capitol later on January 6 (after the Joint Session recessed). But it’s hard to believe that the Court is intervening in an interlocutory posture (remember, the cases have not yet gone to trial) because it wants to draw a temporal distinction among which January 6 rioters can and can’t be prosecuted under 1512(c)(2).

All of this is to say that, if the Court really was interested in narrowing the scope of 1512(c)(2) to align with Judge Katsas’s dissent in Fischer, I don’t get why the Court would sever cases that had hitherto been consolidated. But even if I’m wrong, and there’s just some other unexplained reason for pulling Fischer away from the other cases that doesn’t narrow the scope of the Court’s interest, it’s also not obvious why this would directly affect Trump. True, the 1512(c)(2) charges against lots of other January 6 defendants would be vulnerable if the statute only applies to evidence-related obstruction, but the charges against Trump arguably include that element (especially the effort to generate slates of fraudulent electors for members of the Joint Session to consider). Indeed, Trump can be tied to evidence-related obstruction of January 6 far more easily than just about anyone who was actually at the Capitol that day. So even the worst-case scenario for prosecutors in Fischer may still not reach all the way to the 1512(c)(2) charges against former President Trump, himself. (Never mind the other charges against him, which don’t come from 1512 at all.)

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Why Now?

I noted already that the timing of the petition for cert. before judgment in the Trump case is easily explained. The timing of Fischer is a bit harder—but, critically, appears to be entirely a coincidence. Here’s why: Fischer filed his petition back in September. From that point on, he had very little control over when it would go to Conference—or how quickly the justices would act. Even as late as November 13, when Fischer filed his reply in support of cert., there would still have been no way of knowing that the timing would overlap with the Trump immunity issue.

Ditto the justices. Fischer’s petition was originally scheduled for the Conference on December 1. (The same day, as it turns out, on which Chutkan ruled.) It was rescheduled for December 8 after Justice O’Connor died (and the justices cancelled their December 1 Conference). Thus, the Court’s initial vote to grant Fischer was almost certainly last Friday—before Smith had even filed his petition for cert. before judgment. We only learned about it Wednesday because, ever since 2013, the Court has apparently followed a procedure where it does a second-check of petitions it has voted to grant to ensure there are no procedural problems before publicly granting the case.

That’s all a long way of saying that I think the timing is entirely a coincidence—which reinforces the possibility that, whatever the Court ends up saying about the scope of 1512(c)(2) in January 6 prosecutions, it’ll be with an eye toward the January 6 rioters themselves, and not the former President.

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What Happens Next?

If you’ve made it this far, kudos; there’ll be a quiz on the way out.

The next thing we should hear from the Court is an order granting or denying cert. before judgment in Trump—which, again, could come as soon as the end of next week. An order granting cert. before judgment will likewise also set (or be followed by a second order setting) an expedited briefing and argument schedule. My best guess is that the Court would have briefs due in early January, with argument at the end of the January argument session (currently Wednesday, January 17). But that’s just a guess. A denial would leave things in the D.C. Circuit, where the court of appeals is already moving very quickly—just in case the Court might still want to weigh in.

As for Fischer, barring further order of the Court, the case will be briefed on a regular schedule—with argument in April and a decision by the end of June. We may not know, at least until the argument, just what the justices are focused on. But it’s certainly an issue that will be closely watched in many (if not most) of the January 6 prosecutions—perhaps including that of former President Trump.

Finally, I’d be remiss in not saying something about the broader specter of the Court and January 6. The justices famously stayed all the way out of disputes arising out of efforts to challenge the 2020 election. This week’s developments make clear that they can no longer hope that those issues remain the province of other institutions of government (or lower courts).

The Court’s refusal to get involved in the 2020 election litigation is often held out (including by me) as a powerful example of the Court taking a serious, cautious, and principled view of its role in our system of government, and what it would have said (and to whom) if the justices had even appeared to humor some of the efforts to overturn the 2020 election results. Whether the Court will as successfully navigate the turbid waters of these cases remains to be seen. What can’t be denied is that just hoping that they’ll go away no longer appears to be an option.

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We’ll be back Monday with our regular coverage of the Court. Until then, thanks for reading; I hope you have a great weekend!!

1. Normally, a party has at least 30 days to respond to a cert. petition, and can manipulate that period by waiving a response and then forcing the Court to order one—which restarts the 30-day clock.