Monday marks the start of the two-week “April” argument session at the Supreme Court — traditionally, the last argument session of the term.  After next week, the Supreme Court will spend the next two months finishing up the opinions.  (As of today, we have 14 opinions in the 51 cases heard in the first six argument sessions of the term.  As we get later in the term and have more opinions issued, there will be posts about which justice might have each case.  For now, there are not enough opinions issued to support any attempt to read the tea leaves.)

This session features two crucial cases related to January 6.  The first, being heard on April 16 involves the legal reach of the obstruction charge which has been filed against a significant number of defendants, including prisoner in the dock Donald J. Trump.  The second, being heard on April 25 (a special semi-expedited Thursday argument) involves whether Donald J. Trump has any immunity to the pending charges.

The April 16 argument comes in the case of Fischer vs. United States.  This appeal arises in the context of a motion to dismiss filed Mr. Fischer.  The essence of a motion to dismiss is a pre-trial claim that the conduct alleged by the government is not conduct covered by the offense charged.  The trial court agreed with Mr. Fischer, but the appellate court reversed.

The allegations against Mr. Fischer involve him briefly entering the capitol on January 6.  He also allegedly played a role in instigating other to enter the capitol.  Among the charges against Mr. Fischer was an allegation that he committed the offense of obstruction of an official proceeding in violation of Title 18, Section 1512(c)(2) of the U. S. Code.   This part of Section 1512 (along with paragraph (c)(1)) was added to the offense as part of the Sarbanes-Oxley act in the aftermath of the collapse of Enron and related criminal cases arising from the misconduct of the top executives at Enron.

Paragraph (c)(1) covers the destruction of evidence — specifically, records, documents, and other objects.  There is a similar provision in Section 1519 for federal investigations (referring to other tangible objects).  Several years back, in the Yates case, the Supreme Court (as it often does when presented with a list that ends with “other”) narrowly interpreted other as having to be similar to what is covered by the rest of the list and held that Section 1519 did not apply to an illegally caught fish that a boat captain tossed before an inspection.  The parties in this case assume that Yates also applies to 1512(c)(1).

But this case arises under (c)(2).  Section 1512(c)(2) covers other ways of obstructing official proceedings.  If (c)(1) is about the destruction of documentary evidence sought by Congress, then (c)(2) must be about something else.  Mr. Fischer wants the court to narrowly interpret (c)(2) as applying solely to attempts to prevent the production of evidence for a congressional proceeding.  This case is somewhat paradoxical in that the best argument for that reading may also be the worst argument.  Most of Section 1512 relates to evidence in official proceedings — both physical and testimonial.  That would be an argument against interpreting (c)(2) as applying to the disruption of an official proceeding.  But, the rest of Section 1512 thoroughly covers attempts to prevent a witness from testifying at or otherwise providing information related to a potential official proceeding.  (The definition of official proceedings includes any proceeding before Congress.)  Given the assumption that every provision of law was intended to have meaning (i.e. cover things not covered by other provisions), Section 1512(c)(2) must cover more than just preventing testimony at an official proceeding.  While there are some First Amendment arguments in this case, Section 1512 already makes clear that there is a defense for “lawful conduct.”

This Supreme Court, despite its general pro-law enforcement tilt, has also consistently looked with disfavor on interpretations of criminal statutes that essentially leave it up to prosecutors to decide the scope of the statute.  Thus it is likely that the Supreme Court will want to define exactly what type of conduct is covered by the obstruction statute.  What is less clear is where that line will be drawn and whether that will, potentially, require some modification of the allegations in the obstruction counts or will foreclose any prosecution of the obstruction counts remain to be seen.  As two of the four counts against Trump are for obstruction, the results in Fischer will impact those two counts.

The April 25 argument is in Trump v. United States.  Barring some unexpected development that causes another expedited case, this case will be the last case heard this term.  (There are already some big cases lining up for the next term starting in October.)  As phrased by the Supreme Court, the issue that they are considering is the scope of immunity from prosecution that an ex-president enjoys for his “official acts” while in office.  Of course, an equally big issue in the case is whether the charges against Trump involve official acts.  While a criminal charge against a president is unprecedent, there have been numerous cases on civil immunity.  Given those cases, it is unlikely that the Supreme Court has any interest in the legally absurd maximalist position taken by Trump — that barring conviction by the Senate, an ex-president may not be charged with anything that he did while in office regardless of how clearly personal that conduct is (e.g., failure to pay income taxes).   The special counsel’s argument is essentially that, if the conduct violates the criminal law, it is not something that is an official act (because to qualify as an official act, the act must be authorized by law).

The real risk in this case is that the Supreme Court draws the line somewhere in the middle.  Under the general rules governing courts, the job of the Supreme Court is to clarify the meaning of the law.  It is not the job of the Supreme Court to find the facts related to a legal claim.  Because of this limited role, the normal practice is that, if the Supreme Court finds that the trial court used the wrong legal standard, it sends the case back to the trial court to use the right standard.  Recognizing this risk, the special prosecutor has suggested that the proper scope of any remand based on a new test would be for that test to govern the evidence and instructions at trial — not a new hearing on whether Trump is immune from prosecution.  If the Supreme Court orders a new hearing on immunity (while holding that such a ruling is one that can be immediately appealed as is required to reach the merits of the immunity issue), then Trump will simply appeal again after the trial court denies his immunity claim (as the acts charged here are nowhere near official acts).  And that would assure no trial in D.C. until after the election.

Of course, there are three sub-issues in the case that could make things more or less confusing.  First, there is at least some debate about whether an order denying a motion to dismiss based on immunity is appealable before trial.  The Supreme Court could avoid the immunity question entirely by dismissing the appeal as premature.  Second, some Trump apologists on the right have raised the question of whether the law even permits the designation of special prosecutors.  Without getting into the weeds, my expectation is that there is no interest by the Supreme Court of opening that can of worms.  Finally, as noted above, there is the issue of what constitutes an official act.  The question as framed by the Supreme Court does not seek to resolve that issue, but it is unclear how you decide if Trump has immunity without deciding what acts alleged count as official acts.

As noted above, the tradition of the Supreme Court (which with the exception of the disruption caused by COVID has been followed for over 50 years) is that all cases argued in a term (barring some special argument session) are decided before July 4. While it would be nice to get the opinions in these two cases sooner, a realistic expectation is that the opinion will come in June, probably nearer June 28 than June 3.  (There might be some opinions on July 1 or July 2, but the Supreme Court will desperately try to have everything out by June 29.)  Assuming that the Supreme Court forecloses any further appeals on immunity, it is possible that the D.C. Circuit might try to begin the case (on whatever charges and conduct remains) in late August or early September.  But that is not guaranteed, and there is a decent chance that none of the federal cases will begin before 2025.  That is not a problem as long as the voters do the right thing.