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By Katherine Fung
Senior Writer
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The Supreme Court has agreed to hear one of the cases challenging the Justice Department's interpretation of the "obstruction of an official proceeding" charge in what has been seen as a win for January 6, 2021, Capitol riot defendants.
The court granted certiorari for Fischer v. United States on Wednesday, taking up Joseph Fischer's appeal on the felony charge. The obstruction charge at the center of the Fischer case is the same one deployed against hundreds of defendants allegedly involved in the attack on the Capitol, including former President Donald Trump.
Fischer is one of three January 6 defendants who filed a petition with the Supreme Court. The case could upend hundreds of cases should the justices strike down the DOJ's reading of the obstruction charge and disagree that those who breached the Capitol building "corruptly" obstructed Congress' proceedings on January 6.
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The Supreme Court announcement, which former federal prosecutor Michael McAuliffe called "significant," comes just two days after the petitions were relisted by the high court, which had deferred the decision of whether or not to hear the appeal until the next conference date on January 5, 2024. Legal experts had predicted that cases that are relisted by the Supreme Court have a higher likelihood of being granted by the justices.
"A ruling against the government in the Fischer case in the Supreme Court could well have a ripple effect in many other Capitol riot cases where the defendants were charged with the same obstruction of justice provision, went to trial (as opposed to pleading guilty) and were convicted," McAuliffe told Newsweek.
"A Supreme Court decision culling the obstruction of justice statute could also impact the criminal case against Donald Trump in the US district court in DC, but it's less clear when and how at this juncture," he said.
Legal analyst Andrew Weissmann called it a "good thing" that the court decided to grant the case, so that the DOJ would know if they could charge someone with obstruction sooner rather than later. And legal commentator Randall Eliason predicted that Judge Tanya Chutkan, who is overseeing Trump's federal election interference case, would hold his March trial until the Supreme Court made a decision on Fischer.
"Unless the Court strikes down the statute completely, which seems unlikely, the 1512 charges against Trump could still survive," Eliason wrote on X, formerly Twitter. "But the Court's holding would definitely affect the jury instructions, which is why J. Chutkan will probably wait for it before starting the trial."
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Lawfare senior editor Roger Parloff tweeted that the court's decision to hear Fischer was "ominous" news for the DOJ, since it suggests that the majority of justices agreed to take it up even though there was no circuit split, as typically seen in other cases the Supreme Court hears.
The high court will have until June to issue a ruling, which could still delay Trump's election interference trial much to the dismay of Special Counsel Jack Smith, who just filed his own SCOTUS petition this week in hopes of keeping the trial on track for its March 4, 2024, start date.
Jeffrey Clark, the top Trump DOJ official who was indicted alongside Trump in the RICO case in Fulton County, called the Supreme Court's decision "huge" on X. Clark was charged in August with violating Georgia's RICO act and attempting to commit false statements and writings.
Fischer is a former Pennsylvania police officer who the government says had a physical encounter with another officer during the Capitol riot and urged rioters to "charge" and "hold the line." He was charged in February 2021 for obstruction of law enforcement, entering a restricted building, disorderly conduct on Capitol grounds, and obstruction of justice. He pleaded not guilty to all charges.
On Wednesday, legal analyst Steve Vladek questioned why the court chose to hear Fischer's case but not the other two January 6 appeals, saying it "Seems like there's a clue here about how narrow the Court's intervention is going to be."
"I *don't know* why they'd take only Fischer and not the other two, but it suggests that *perhaps* this is not as major an intervention as it's being portrayed—and is about something narrower in just Fischer's case," Valdek tweeted.
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