Supreme Court asked to weigh novel prosecution theory used against Trump in January 6 case

September 19, 2023
Matthew Boose

The Biden Justice Department's novel use of a 20-year-old financial fraud law against Donald Trump and hundreds of January 6th defendants is up for a review at the Supreme Court.

Three men charged with "obstruction of an official proceeding" have asked the Supreme Court to throw out the charges, calling the prosecution overzealous and inappropriate.

The obstruction statute at issue was one of the four charges cited in Jack Smith's indictment of Trump for attempting to "overturn" the 2020 election.

Trump charges at Supreme Court?

The crime of obstruction of an official proceeding was created by Congress in 2002 to crack down on financial fraud in the aftermath of the Enron Scandal.

The Biden Justice Department has controversially indicted Trump and hundreds of January 6th protesters under the statute, which carries a maximum sentence of 20 years in prison.

Lawyers for Edward Lang, Joseph Fischer and Garret Miller are asking for their charges to be dismissed, arguing the DOJ is using the law in ways that were never intended. They also argue the government's broad scope could be used to criminalize all sorts of political activity.

"It is no overstatement to say the future of the First Amendment hangs in the balance," attorneys for Lang told the Supreme Court, warning a law "intended to combat financial fraud....has been transformed into a blatant political instrument to crush dissent."

U.S. district judge Carl Nichols agreed, finding the defendants must have taken “some action with respect to a document, record or other object" to fall under the statute. But a divided appeals court in Washington D.C. reversed that ruling in April.


The dissenting judge, Gregory Katsas, warned the government's broad scope "would supercharge a range of minor advocacy, lobbying, and protest offenses into 20-year felonies."

Katsas also pointed out that until January 6th, obstruction of an official proceeding charges had only ever been used in evidence tampering cases.

A handful of January 6th participants have been convicted of "seditious conspiracy", but after years of hysteria about the "insurrection," Smith declined to charge Trump with sedition or insurrection.

Instead, Smith charged Trump with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights.

Trump has blasted the indictment, which accuses Trump of making "false" political claims about the 2020 election, as an attack on free speech and an attempt by a "deranged" partisan prosecutor to interfere in the 2024 presidential election.

Smith gave Trump more fuel to work with this weekend by asking the judge for a gag order - citing Trump's numerous comments criticizing Smith and the judge.

In 2016, Smith was unanimously rebuked by the Supreme Court in a corruption case against former Virginia Republican governor Bob McDonnell. The court blasted Smith's "boundless interpretation" of the law as a "threat to the separation of powers."

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