Here’s the latest on the arguments.

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By journalsofus.com


The Supreme Court will hear arguments Tuesday in a case that could throw out some of the federal charges against former President Donald J. Trump in the case accusing him of conspiring to subvert the 2020 election and could halt prosecutions of hundreds of rioters involved. In the elections. Attack on the Capitol.

The question the justices will consider is whether a provision of the Sarbanes-Oxley Act, enacted after the collapse of energy giant Enron, covers the conduct of a former police officer, Joseph W. Fischer, who participated in the assault on the Capitol. , on January 6, 2021.

The law figures in two of the federal charges against Trump in his election subversion case, and more than 350 people who stormed the Capitol have been prosecuted under it. If the Supreme Court sides with Fischer and says the statute doesn’t cover what he is accused of doing, Trump will almost certainly argue that it doesn’t apply to his conduct either.

The law, signed in 2002, was motivated by accounting fraud and document destruction, but the provision is written broadly.

At least part of what the law was intended to accomplish was to address a gap in the federal criminal code: It was a crime to persuade others to destroy records relevant to an official investigation or proceeding, but not to do so yourself. The law sought to close that gap.

It did so in a two-part arrangement. The first part makes it a crime to corruptly alter, destroy or conceal evidence to frustrate official proceedings. The second part, at issue in Mr. Fischer’s case, makes it a crime to “otherwise” corruptly obstruct, influence or impede any official proceeding.

Here’s what else you should know:

  • The crux of the case is the pivot from the first part of the provision to the second. The ordinary meaning of “otherwise,” prosecutors say, is “otherwise.” That means, they say, that obstruction of official proceedings does not have to involve the destruction of evidence. The second part, they say, is a broad concept that applies to all types of behavior. Mr. Fischer’s lawyers respond that the first part of the provision should inform and limit the second, to obstruction linked to the destruction of evidence. They would be read “otherwise,” in other words, as “similarly.”

  • The case is one of several affecting or involving Trump in the court docket. In a separate case to be argued next week, the justices will consider Trump’s claim that he is completely immune from prosecution.

  • Mr. Fischer is accused of entering the Capitol at around 3:24 p.m. on January 6, 2021, with the counting of electoral votes having been suspended after the initial assault. Before his trip to Washington, prosecutors said he told a superior in a text message that he “might become violent.” In another, he wrote that “they should storm the capital and drag all the Democrats into the streets and hold a mass trial.” Prosecutors say the videos showed Mr. Fischer yelling “Charge!” before pushing his way through the crowd, using a vulgar term to berate police officers, and crashing into a line of them.

  • Mr. Fischer’s lawyers dispute some of this. But the question for the judges is legal, not factual: Does the 2002 law cover what Mr. Fischer is accused of? This may depend in part on the meaning of another term in the law: its requirement that the defendant acted “corruptly.” The meaning of that word is disputed.

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