With Fischer v. U.S. Decided In Favor Of January 6 Defendants, What Impact Will It Have on U.S. v. Trump in the District of Columbia Federal Court?

While SCO Smith may ultimately manage to hold on to the charge, there is a good chance some of his most valuable evidence may no longer be relevant.

With regard to the events of January 6 and the efforts of the Biden DOJ to define a segment of the GOP as “domestic terrorists, the news Friday of the Supreme Court’s decision in United States v. Fischer — cutting the legs out from under DOJ’s use of an “obstruction of justice” statute to proseçute January 6 protesters — has generated some discussion online and on-air about what the Fischer decision might mean for the indictment obtained by Special Counsel Jack Smith against former President Trump.

I’ve read much and listened to some of the various pundits and journalists — from both sides of the political spectrum — and most of it comes in the form of two-dimensional thinking.

Practitioners like myself don’t look at this from the “30,000 foot” level — you have to get down to the details of what is happening the case, how the ground has shifted, and what might ACTUALLY happen as a result. Very few times are there outright “disasters” in this kind of situation for DOJ. SC Smith and his group of assistants have been studying for months how they will respond to an adverse decision in Fischer, and how the might be forced to respond to an adverse decision on the issue of Presidential Immunity that should come down from SCOTUS tomorrow morning.

When a trial litigator evaluates the landscape since Friday, the language of the statute at issue — 18 U.S.C. Sec. 1512(c)(2) — is less an issue than the language in the indictment that charges Trump with a violation of that statute. Here is why:

“On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).

That is Chief Justice Roberts’ final sentence in the Opinion of the Court in the Fischer decision. It does NOT say Sec. 1512(c)(2) cannot be employed as charge in connection with the events of January 6. It says the Appeals Court must take another look at how DOJ charged Mr. Fischer in light of the narrower definition of the statute that the Court has adopted as correct. So the text of the statute is less significant than the text of the indictment. Even if found to be insufficient, the door is open to SC Smith making an effort to alter the language of the indictment to pass the test laid down by SCOTUS.

This is what practitioners do — what is my client charged with?