This is Bloomberg Law with June Brusso from Bloomberg Radio.

This is Bloomberg Law with June Brusso from Bloomberg Radio.

Prosecutors have brought obstruction charges against more than three hundred and fifty defendants in the Capitol Riot cases, including two counts against Donald Trump for his efforts to overturn his election loss in twenty twenty. But during oral arguments today, several Conservative Supreme Court justices like Neil Gorsuch express skepticism about the potential scope of the charge and the kinds of conduct it could criminalize.

Prosecutors have brought obstruction charges against more than three hundred and fifty defendants in the Capitol Riot cases, including two counts against Donald Trump for his efforts to overturn his election loss in twenty twenty. But during oral arguments today, several Conservative Supreme Court justices like Neil Gorsuch express skepticism about the potential scope of the charge and the kinds of conduct it could criminalize.

Would a sit in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify? Or at the State of the Union address, would pulling a fire alarm before a vote qualify? For twenty years in federal prison.

Would a sit in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify? Or at the State of the Union address, would pulling a fire alarm before a vote qualify? For twenty years in federal prison.

The case involves Joe Joseph Fischer, a former Pennsylvania police officer and January sixth defendant, who argues the felony obstruction charge, which carries a prison sentence of twenty years, was intended to prevent evidence tampering, not insurrection. Justice Clarence Thomas, whose wife Ginny is a conservative activist, who was at the rally on January sixth, asked the US Solicitor General, Elizabeth pre Lagger, if prosecutors have ever used this statute before in response to violent protests.

The case involves Joe Joseph Fischer, a former Pennsylvania police officer and January sixth defendant, who argues the felony obstruction charge, which carries a prison sentence of twenty years, was intended to prevent evidence tampering, not insurrection. Justice Clarence Thomas, whose wife Ginny is a conservative activist, who was at the rally on January sixth, asked the US Solicitor General, Elizabeth pre Lagger, if prosecutors have ever used this statute before in response to violent protests.

So have you enforced it in that manner?

So have you enforced it in that manner?

We have enforced it in a variety of prosecutions that don't focus on evidence tampering. Now, I can't give you an example of enforcing it in a situation where people have violently stormed a building in order to prevent an official preceding a specified one from occurring, with all of the elements like intent to obstruct, knowledge of the preceding, of having the corruptly mens raa. But that's just because I'm not aware of that circumstance ever happening prior to January sixth.

We have enforced it in a variety of prosecutions that don't focus on evidence tampering. Now, I can't give you an example of enforcing it in a situation where people have violently stormed a building in order to prevent an official preceding a specified one from occurring, with all of the elements like intent to obstruct, knowledge of the preceding, of having the corruptly mens raa. But that's just because I'm not aware of that circumstance ever happening prior to January sixth.

Joining former federal prosecutor Jessica Roth, a professor at Cardozo Law School, Jessica explain what the issue is here.

Joining former federal prosecutor Jessica Roth, a professor at Cardozo Law School, Jessica explain what the issue is here.

So the issue here is how to interpret the obstruction of an official preceding statute, which is one of a series of statutes that address obstruction of justice in various forms. It's a particular provision that was enacted in two thousand and two as part of the Sarbanes Oxley Act following the Enron scandal and the revelation of significant accounting frauds on the part of the accountants for Enron, and the revelation that although those involved in the shredding of documents related to Enron were prosecuted, that there was essentially a gap in the obstruction of justice statutes because it was not possible to charge somebody for destroying evidence essentially on their own. The statutes required that a person direct or somehow get another person to destroy documents. And so it wasn't that there was so much a problem charging in the Enron case, but that it was identified that this could be a problem in future cases. And so the particular statute that was charged here against mister Fisher, that's been used against over three hundred defendants who are charged arising out of the January sixth insurrection, and that also is the basis for two of the charges against Donald Trump and the January sixth case against him. And the question is whether or not that statute can be used to charge a person for obstructing and a proceeding, including a proceeding of Congress, where the destruction of evidence or tampering with evidence per se is not part of the factual allegation.

So the issue here is how to interpret the obstruction of an official preceding statute, which is one of a series of statutes that address obstruction of justice in various forms. It's a particular provision that was enacted in two thousand and two as part of the Sarbanes Oxley Act following the Enron scandal and the revelation of significant accounting frauds on the part of the accountants for Enron, and the revelation that although those involved in the shredding of documents related to Enron were prosecuted, that there was essentially a gap in the obstruction of justice statutes because it was not possible to charge somebody for destroying evidence essentially on their own. The statutes required that a person direct or somehow get another person to destroy documents. And so it wasn't that there was so much a problem charging in the Enron case, but that it was identified that this could be a problem in future cases. And so the particular statute that was charged here against mister Fisher, that's been used against over three hundred defendants who are charged arising out of the January sixth insurrection, and that also is the basis for two of the charges against Donald Trump and the January sixth case against him. And the question is whether or not that statute can be used to charge a person for obstructing and a proceeding, including a proceeding of Congress, where the destruction of evidence or tampering with evidence per se is not part of the factual allegation.

Did it seem during the oral arguments that the conservative justices were skeptical about the Justice Department using the obstruction charge against Fisher and the other January sixth defendants.

Did it seem during the oral arguments that the conservative justices were skeptical about the Justice Department using the obstruction charge against Fisher and the other January sixth defendants.

There were clearly some justices who were skeptical of the charge. I would say Justice Alito was the one who seemed most clearly skeptical. Chief Justice Roberts also expressed some concerns, although he did not ask that many questions. Justice Gorschitz had some concerns about the breadth of the potential application of the statute if the Court were to rule for the government. There were several justices who seemed much more inclined to rule for the government, notably Justice Soto, Mayor, Justice Kagan, and Justice Katangi Braun Jackson all seemed supportive of the interpretation of the statutes that the government was advancing. But then there were several justices who seemed sort of in the middle and open to persuasion. So I can't stay with any confidence how this case is going to come out.

There were clearly some justices who were skeptical of the charge. I would say Justice Alito was the one who seemed most clearly skeptical. Chief Justice Roberts also expressed some concerns, although he did not ask that many questions. Justice Gorschitz had some concerns about the breadth of the potential application of the statute if the Court were to rule for the government. There were several justices who seemed much more inclined to rule for the government, notably Justice Soto, Mayor, Justice Kagan, and Justice Katangi Braun Jackson all seemed supportive of the interpretation of the statutes that the government was advancing. But then there were several justices who seemed sort of in the middle and open to persuasion. So I can't stay with any confidence how this case is going to come out.

Let's talk about some of the concerns of the very conservative justices on the far right of the court. So Justice Neil Gorsuch said, would a sit in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify? Or a State of the Union address us what pulling a fire alarm before a vote referring to an incident in Congress that happened recently qualified for twenty years in federal prison. So they were sort of questioning the breath I guess of this.

Let's talk about some of the concerns of the very conservative justices on the far right of the court. So Justice Neil Gorsuch said, would a sit in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify? Or a State of the Union address us what pulling a fire alarm before a vote referring to an incident in Congress that happened recently qualified for twenty years in federal prison. So they were sort of questioning the breath I guess of this.

A number of the justices asked questions and post hypotheticals that really were geared at testing the outer limits of the construction of the statutes that the government was advancing, and those did include hypothetical protests, for example, or somebody in some way disrupting an official proceeding, such as protesting outside a courthouse or pulling a fire alarm, And the justices wanted to know, well, would the government charge that person with obstruction of an official proceeding under its interpretation? And this Lister General responded by saying, there are a number of safeguards in the statute that would preclude a prosecution in those circumstances, even if the court rules our way. She said, the obstruction or the impediment of the official proceding in a sense, must be more than dominionists. It has to actually, in some way that is not insignificant impair the proceeding, And so that would be something that might preclude a prosecution for somebody who pulled a fire alarm that caused a disruption that was only a matter of minutes, or that would preclude prosecution of protesters who only minimally disrupted a proceeding inside a courthouse, perhaps where things had to quiet down for a few minutes, just to make sure that the protest was moving on and was peaceful. So that was one way in which she said the statute would not apply because the actus rays in the sense of the impeding, it has to be construed in a way that it's more than minimal disruption. The second thing she said is that the men's raya requirement of the statute, which is that the person has to act corruptly, also would preclude prosecution of people in some of these hypotheticals, because it would be unlikely that the government could prove that those people acted with corrupt intents, that is, doing something knowing that it was wrong and contrary to law. If people thought, for example, they were engaged in peaceful protests protected by the First Amendment. In some circumstances, they might be wrong about whether their activity was protected by the First Amendment, but their belief that it was might preclude a finding that they acted with the requisite corrupt intent. So those are two of the ways in which she said the statute is limited and doesn't need to be limited further by the interpretation advanced by Fisher. And one final thing she said is that there's a nexus requirement in the statute.

A number of the justices asked questions and post hypotheticals that really were geared at testing the outer limits of the construction of the statutes that the government was advancing, and those did include hypothetical protests, for example, or somebody in some way disrupting an official proceeding, such as protesting outside a courthouse or pulling a fire alarm, And the justices wanted to know, well, would the government charge that person with obstruction of an official proceeding under its interpretation? And this Lister General responded by saying, there are a number of safeguards in the statute that would preclude a prosecution in those circumstances, even if the court rules our way. She said, the obstruction or the impediment of the official proceding in a sense, must be more than dominionists. It has to actually, in some way that is not insignificant impair the proceeding, And so that would be something that might preclude a prosecution for somebody who pulled a fire alarm that caused a disruption that was only a matter of minutes, or that would preclude prosecution of protesters who only minimally disrupted a proceeding inside a courthouse, perhaps where things had to quiet down for a few minutes, just to make sure that the protest was moving on and was peaceful. So that was one way in which she said the statute would not apply because the actus rays in the sense of the impeding, it has to be construed in a way that it's more than minimal disruption. The second thing she said is that the men's raya requirement of the statute, which is that the person has to act corruptly, also would preclude prosecution of people in some of these hypotheticals, because it would be unlikely that the government could prove that those people acted with corrupt intents, that is, doing something knowing that it was wrong and contrary to law. If people thought, for example, they were engaged in peaceful protests protected by the First Amendment. In some circumstances, they might be wrong about whether their activity was protected by the First Amendment, but their belief that it was might preclude a finding that they acted with the requisite corrupt intent. So those are two of the ways in which she said the statute is limited and doesn't need to be limited further by the interpretation advanced by Fisher. And one final thing she said is that there's a nexus requirement in the statute.

It has to be the.

It has to be the.

Natural and probable consequence of the defendant's action that it actually would more than minimally disrupt the official proceeding in question. And so she said, when you add on that third element of the nexus, that also would contain the potential breadth of the statute. And actually, now I'm realizing there's a fourth thing she said, which is, in some circumstances, there could be an as applied First Amendment challenge to a prosecution in some of the hypotheticals raised by the justices. So, in other words, she said, the court could rule in the government's favor on its interpretation of the statute as applied to official proceedings and not be worried about some of the sort of pervaded of horribles that the court seem to be concerned about.

Natural and probable consequence of the defendant's action that it actually would more than minimally disrupt the official proceeding in question. And so she said, when you add on that third element of the nexus, that also would contain the potential breadth of the statute. And actually, now I'm realizing there's a fourth thing she said, which is, in some circumstances, there could be an as applied First Amendment challenge to a prosecution in some of the hypotheticals raised by the justices. So, in other words, she said, the court could rule in the government's favor on its interpretation of the statute as applied to official proceedings and not be worried about some of the sort of pervaded of horribles that the court seem to be concerned about.

Would that kind of answer satisfy the textualists, I mean her saying how the Justice Department won't bring this kind of a case and that has to have corrupt attent and all that. Would that satisfy the textualists who we're just looking at the wording, which seems problematic.

Would that kind of answer satisfy the textualists, I mean her saying how the Justice Department won't bring this kind of a case and that has to have corrupt attent and all that. Would that satisfy the textualists who we're just looking at the wording, which seems problematic.

I think the textual argument interpreting the statute in context, I think the argument is actually quite good for the government. But the listener General was really emphasizing is that this statute fifteen twelve f two, which is the one that contains this introductory word or otherwise obstruction official proceeding, is a separate statutory paragraph from the section that precedes it, which is the one that talks about impairing evidence. And she attached great significance to the fact that Congress chose to make a separate statutory paragraph for this residual provision otherwise, and she said that's what distinguishes this particular statute from other statutes where courts have interpreted otherwise or other similars of general language as being modified by the specific terms that come before it. She said, here, there's really a lot of significance in the fact that it is an entirely different statutory paragraph, is effectively stand alone, and it's meant to address ways of obstructing an official proceeding that are not captured by the previous provision C one, which is the one about destroying or altering evidence. So there's a textual reading that I think is consistent with the government's position. The concerns about the application of the statute to these very broad set of circumstances I think are practical concern and I think the question is is the court prepared to let the government's interpretation go forward in this case and let these questions of Statuto interpretation on the other parts of the statute sort of percolate through the courts, so that the Statute is given a narrowing interpretation with respect to those other provisions such as what actually counts as obstruction, for example, or the men's rea, and let that actually be said as a matter of law in the courts, as opposed to just trusting the government to say, well, this is how we interpret and apply the statute.

I think the textual argument interpreting the statute in context, I think the argument is actually quite good for the government. But the listener General was really emphasizing is that this statute fifteen twelve f two, which is the one that contains this introductory word or otherwise obstruction official proceeding, is a separate statutory paragraph from the section that precedes it, which is the one that talks about impairing evidence. And she attached great significance to the fact that Congress chose to make a separate statutory paragraph for this residual provision otherwise, and she said that's what distinguishes this particular statute from other statutes where courts have interpreted otherwise or other similars of general language as being modified by the specific terms that come before it. She said, here, there's really a lot of significance in the fact that it is an entirely different statutory paragraph, is effectively stand alone, and it's meant to address ways of obstructing an official proceeding that are not captured by the previous provision C one, which is the one about destroying or altering evidence. So there's a textual reading that I think is consistent with the government's position. The concerns about the application of the statute to these very broad set of circumstances I think are practical concern and I think the question is is the court prepared to let the government's interpretation go forward in this case and let these questions of Statuto interpretation on the other parts of the statute sort of percolate through the courts, so that the Statute is given a narrowing interpretation with respect to those other provisions such as what actually counts as obstruction, for example, or the men's rea, and let that actually be said as a matter of law in the courts, as opposed to just trusting the government to say, well, this is how we interpret and apply the statute.

A couple of the Justice has seen concerned about the stiff possible twenty year sentence, and Justice Brett Kavanaugh brought up the six other charges that Fisher is facing.

A couple of the Justice has seen concerned about the stiff possible twenty year sentence, and Justice Brett Kavanaugh brought up the six other charges that Fisher is facing.

Why aren't those six counts good enough?

Why aren't those six counts good enough?

Just from the Justice.

Just from the Justice.

Department's perspective, given that they don't have any of the hurdles.

Department's perspective, given that they don't have any of the hurdles.

I thought the Slicer General's response to that question was actually quite compelling. She said, yes, he was charged with other counts, but that those other counts did not fully capture the harm of his conduct, and that it was important that the charges reflect the harm that his conduct allegedly inflicted, which was impairing the official proceeding of the congressional certification of their electoral College vote. And prosecutors frequently charge a number of offenses for one set of conduct in order to have the charges fully reflect the seriousness and the scope of the conduct. It is important to note that Fisher has not actually been tried yet, so I should qualify all of this with he is alleged to have done all of these things. This charge was dismissed by the trial court before it went to trial, and then that went up to the DC Circuit Court of appeals, and so there's actually a factual dispute among the parties about what exactly it is that Fisher did and how violent was he at the Capitol. But the government is saying that at least as alleged in the indictment, he engaged in violence against members of the Capitol police and participated in conduct that collectively obstructed the official proceeding, which was the counting of the votes coming up.

I thought the Slicer General's response to that question was actually quite compelling. She said, yes, he was charged with other counts, but that those other counts did not fully capture the harm of his conduct, and that it was important that the charges reflect the harm that his conduct allegedly inflicted, which was impairing the official proceeding of the congressional certification of their electoral College vote. And prosecutors frequently charge a number of offenses for one set of conduct in order to have the charges fully reflect the seriousness and the scope of the conduct. It is important to note that Fisher has not actually been tried yet, so I should qualify all of this with he is alleged to have done all of these things. This charge was dismissed by the trial court before it went to trial, and then that went up to the DC Circuit Court of appeals, and so there's actually a factual dispute among the parties about what exactly it is that Fisher did and how violent was he at the Capitol. But the government is saying that at least as alleged in the indictment, he engaged in violence against members of the Capitol police and participated in conduct that collectively obstructed the official proceeding, which was the counting of the votes coming up.

If the court rules for Fisher, what happens to the charges against Trump? This is Bloomberg. I've been talking to Professor Jessica Ront of Cardozo Law School about Supreme Court oral arguments today over the obstruction charge levied against hundreds of January sixth Capital Riot defendants as well as Donald Trump. Many of the conservative justices expressed skepticism about the Justice Department's use of the charge in the cases. So a couple of the justices, and particularly Clarence Thomas, asked the US Listener General Elizabeth Prelager, if prosecutors have ever used the statute, this obstruction statute in other violent protests, and she said that there weren't any other specific instances because nothing like this has happened. She did bring some other prosecutions up, though did all of them concern the destruction of evidence.

If the court rules for Fisher, what happens to the charges against Trump? This is Bloomberg. I've been talking to Professor Jessica Ront of Cardozo Law School about Supreme Court oral arguments today over the obstruction charge levied against hundreds of January sixth Capital Riot defendants as well as Donald Trump. Many of the conservative justices expressed skepticism about the Justice Department's use of the charge in the cases. So a couple of the justices, and particularly Clarence Thomas, asked the US Listener General Elizabeth Prelager, if prosecutors have ever used the statute, this obstruction statute in other violent protests, and she said that there weren't any other specific instances because nothing like this has happened. She did bring some other prosecutions up, though did all of them concern the destruction of evidence.

That was an interesting exchange because she was asked if the government had brought similar prosecutions for obstructing official proceeding essentially against those who engaged in political protests other than January sixth, and there one had the sense that some of the conservative justices were trying to get a concession that this statute was only used essentially against the January six protesters. And her response effectively was there hasn't been a similar fact pattern where people, through violence tried to obstruct an official proceeding that would have lent themselves to such a charge. But when she was pressed about using the charge against defendants and situations that, aside from political violence, simply just didn't evolve destruction or alteration of evidence, she said there were examples that she could point to, and there are some in her brief that involved, for example, tipping off somebody that they were the subject of a grand jury investigation, or identifying an undercover informant to an individual, and she said, those don't involve tampering with evidence, and we've used this same charge against individuals in those circumstances. The response from the attorney for mister Fisher was, well, those are also examples of cases involving efforts to tamper with evidence, because those are witnesses, in effect, who have been identified such that a person could arguably intimidate the witness or alter their testimony. It just would be sort of witnesses as opposed to documents as evidence. So it's an interesting categorization question is do those in fact count as non evidence related obstruction charges, as she argues, or are they just another version of of evidence campering, as Fisher would argue. It points to one of the big questions here, which is what is the concern of this statute fifteen twelve C. Is it concerned with campering with documents and other forms of evidence, which was the specific concern identified by Congress following the Enron scandal, or is the concern of the statute better stated at a broader level of generality, which is obstruction of official proceedings and attempts to obstruct with official proceedings in whatever form such obstruction might take, not limited solely to obstruction that is accomplished through interference with evidence. The Splister General's position is that it is the latter, more general concern, and that is evidenced by the fact that Congress broke the section into two parts. C one, which is address to evidence tampering, and C two, which is the catch all, which starts with the phrase or otherwise and then describes essentially any other manner in which a person would obstruct an official proceeding. And so she says, the concern of Congress was to anticipate and outlaws ways of obstructing official proceedings that were not limited to evidence tampering. And Congress couldn't anticipate and articulate all the different forms that might take, and that's why they inserted this C two provision that was charged here and which she says fits the facts.

That was an interesting exchange because she was asked if the government had brought similar prosecutions for obstructing official proceeding essentially against those who engaged in political protests other than January sixth, and there one had the sense that some of the conservative justices were trying to get a concession that this statute was only used essentially against the January six protesters. And her response effectively was there hasn't been a similar fact pattern where people, through violence tried to obstruct an official proceeding that would have lent themselves to such a charge. But when she was pressed about using the charge against defendants and situations that, aside from political violence, simply just didn't evolve destruction or alteration of evidence, she said there were examples that she could point to, and there are some in her brief that involved, for example, tipping off somebody that they were the subject of a grand jury investigation, or identifying an undercover informant to an individual, and she said, those don't involve tampering with evidence, and we've used this same charge against individuals in those circumstances. The response from the attorney for mister Fisher was, well, those are also examples of cases involving efforts to tamper with evidence, because those are witnesses, in effect, who have been identified such that a person could arguably intimidate the witness or alter their testimony. It just would be sort of witnesses as opposed to documents as evidence. So it's an interesting categorization question is do those in fact count as non evidence related obstruction charges, as she argues, or are they just another version of of evidence campering, as Fisher would argue. It points to one of the big questions here, which is what is the concern of this statute fifteen twelve C. Is it concerned with campering with documents and other forms of evidence, which was the specific concern identified by Congress following the Enron scandal, or is the concern of the statute better stated at a broader level of generality, which is obstruction of official proceedings and attempts to obstruct with official proceedings in whatever form such obstruction might take, not limited solely to obstruction that is accomplished through interference with evidence. The Splister General's position is that it is the latter, more general concern, and that is evidenced by the fact that Congress broke the section into two parts. C one, which is address to evidence tampering, and C two, which is the catch all, which starts with the phrase or otherwise and then describes essentially any other manner in which a person would obstruct an official proceeding. And so she says, the concern of Congress was to anticipate and outlaws ways of obstructing official proceedings that were not limited to evidence tampering. And Congress couldn't anticipate and articulate all the different forms that might take, and that's why they inserted this C two provision that was charged here and which she says fits the facts.

Jessica, you yourself looking at this, do you think that the Justice Department was stretching it to charge these defendants with obstruction?

Jessica, you yourself looking at this, do you think that the Justice Department was stretching it to charge these defendants with obstruction?

I think if you look at the statute and you follow the government's argument about how the statute can be read as applying to any means of obstructing an official proceeding so long as the person acts with corrupt intent and this requisite nexus is satisfied, I think it is a fair interpretation of the statute that it applies to these facts. It is unprecedented, but that I think speaks to the fact that there's been no similar fact pattern where people have attempted to and did obstruct for a time an official proceeding through such acts of violence. So it is novel, but I don't think that it is beyond the pale of what is covered by this statute. I do think we'd be getting into some very interesting territory if the Court were to say that it's finding for Fisher and the statute cannot be read beyond applications involving evidence, and whether the government then seeks to apply the statute so limited to the facts presented here. The government said in a footnote in its brief, and it reiterated at the argument today, that it would like the opportunity to argue that even under such a narrowed construction, that the facts can meet that construction because the proceeding before Congress involved the counting of the electoral votes, and that involved essentially the evidence of the votes presented to Congress. That's I think going to be very interesting to think about whether that application strains the statute too much, and that is precisely the argument that has been advanced by some watching the Fisher case for its significance for the case against Donald Trump, on the theory that if the court rules against the government in Fisher and says that acts of violence to obstruct official proceeding do not fall within the statute, could a sort of backup argument be that the electoral votes being certified in the course of that proceeding before Congress, that that could be essentially the hook to the documentary evidence that would be required to satisfy the statute.

I think if you look at the statute and you follow the government's argument about how the statute can be read as applying to any means of obstructing an official proceeding so long as the person acts with corrupt intent and this requisite nexus is satisfied, I think it is a fair interpretation of the statute that it applies to these facts. It is unprecedented, but that I think speaks to the fact that there's been no similar fact pattern where people have attempted to and did obstruct for a time an official proceeding through such acts of violence. So it is novel, but I don't think that it is beyond the pale of what is covered by this statute. I do think we'd be getting into some very interesting territory if the Court were to say that it's finding for Fisher and the statute cannot be read beyond applications involving evidence, and whether the government then seeks to apply the statute so limited to the facts presented here. The government said in a footnote in its brief, and it reiterated at the argument today, that it would like the opportunity to argue that even under such a narrowed construction, that the facts can meet that construction because the proceeding before Congress involved the counting of the electoral votes, and that involved essentially the evidence of the votes presented to Congress. That's I think going to be very interesting to think about whether that application strains the statute too much, and that is precisely the argument that has been advanced by some watching the Fisher case for its significance for the case against Donald Trump, on the theory that if the court rules against the government in Fisher and says that acts of violence to obstruct official proceeding do not fall within the statute, could a sort of backup argument be that the electoral votes being certified in the course of that proceeding before Congress, that that could be essentially the hook to the documentary evidence that would be required to satisfy the statute.

Could the Special Council go ahead with just two of the charges against Trump?

Could the Special Council go ahead with just two of the charges against Trump?

Absolutely, the case could go forward based on the conspiracy charge to defraud the United States and the conspiracy to deprive people of the right to have their votes counted. There's no reason the case couldn't go forward without the two obstruction related charges.

Absolutely, the case could go forward based on the conspiracy charge to defraud the United States and the conspiracy to deprive people of the right to have their votes counted. There's no reason the case couldn't go forward without the two obstruction related charges.

A Trump appointee was the only District Court judge out of fifteen in DC hearing the January sixth cases to adopt this narrow reading of the statute dismiss Fisher's obstruction charge. Then you had on the appellate court. Another Trump appointee was the one who dissented and what does it say if you have six conservatives or five conservatives on this court with three Trump appointees. What does it say if they dismiss the charges against Fisher and so the charges fail against the other January sixth defendants, including Trump.

A Trump appointee was the only District Court judge out of fifteen in DC hearing the January sixth cases to adopt this narrow reading of the statute dismiss Fisher's obstruction charge. Then you had on the appellate court. Another Trump appointee was the one who dissented and what does it say if you have six conservatives or five conservatives on this court with three Trump appointees. What does it say if they dismiss the charges against Fisher and so the charges fail against the other January sixth defendants, including Trump.

Statuto interpretation questions often do not line up exactly with judges and justices perceived political affiliations. So one of the cases that was discussed in the briefs and in the argument today was a case called Yates, which involved the construction of a related obstruction of justice statute. That was a decision authored by Justice Kagan and involved the question of whether a fish was a tangible object for purposes of another statute that's nearby, and Justice Kagan wrote an opinion for the court holding that a fish was not a tangible object for purposes of that statute, which the Court ruled in that context was limited to objects that were similar to records of the kind maintained by businesses and used as evidence, and that were the primary motivating concern of Congress when it enacted the Sarbainanes Oxley Act. Justice Kagan is usually thought of as being more aligned with the liberal wing of the Court, but she wrote that opinion that ruled against the government on its interpretation question. There are a number of the justices, namely Justice Gorsuch, who is somebody who's really advocated for robust application of a doctrine known as the rule of lenity, which is a defendant favoring doctrine that statutes criminal statutes should be construed in a way that is more favorable to the defendant when there is ambiguity about their terms. And he's generally viewed as being more part of the conservative court. So statute of interpretation questions sometimes lead to interesting outcomes that don't align necessarily with the justices political orientation or the political affiliation of the president who appointed them. So I really don't know how the case is going to come out, and I don't know that we should necessarily predict it based on the appointing president of the judge or justices who's considering the issue.

Statuto interpretation questions often do not line up exactly with judges and justices perceived political affiliations. So one of the cases that was discussed in the briefs and in the argument today was a case called Yates, which involved the construction of a related obstruction of justice statute. That was a decision authored by Justice Kagan and involved the question of whether a fish was a tangible object for purposes of another statute that's nearby, and Justice Kagan wrote an opinion for the court holding that a fish was not a tangible object for purposes of that statute, which the Court ruled in that context was limited to objects that were similar to records of the kind maintained by businesses and used as evidence, and that were the primary motivating concern of Congress when it enacted the Sarbainanes Oxley Act. Justice Kagan is usually thought of as being more aligned with the liberal wing of the Court, but she wrote that opinion that ruled against the government on its interpretation question. There are a number of the justices, namely Justice Gorsuch, who is somebody who's really advocated for robust application of a doctrine known as the rule of lenity, which is a defendant favoring doctrine that statutes criminal statutes should be construed in a way that is more favorable to the defendant when there is ambiguity about their terms. And he's generally viewed as being more part of the conservative court. So statute of interpretation questions sometimes lead to interesting outcomes that don't align necessarily with the justices political orientation or the political affiliation of the president who appointed them. So I really don't know how the case is going to come out, and I don't know that we should necessarily predict it based on the appointing president of the judge or justices who's considering the issue.

If the court finds for Fisher here, what happens to the one hundred and twenty or so January sixth defendants who've been convicted and sentenced under the same charge.

If the court finds for Fisher here, what happens to the one hundred and twenty or so January sixth defendants who've been convicted and sentenced under the same charge.

So I'm fairly certain that no defendant associated with January six has been charged solely with this obstruction statute, but there were other charges for each of them, so those other convictions would stand even if the Court were to rule against the government here. And if the court were to rule that this obstruction statute cannot be used in the context of January sixth because it didn't involve the destruction of evidence, so the defendants in those other cases would be resentenced.

So I'm fairly certain that no defendant associated with January six has been charged solely with this obstruction statute, but there were other charges for each of them, so those other convictions would stand even if the Court were to rule against the government here. And if the court were to rule that this obstruction statute cannot be used in the context of January sixth because it didn't involve the destruction of evidence, so the defendants in those other cases would be resentenced.

Is there any way that the justices could come down with a decision that affects Fisher but not the rest of the January sixth defendants.

Is there any way that the justices could come down with a decision that affects Fisher but not the rest of the January sixth defendants.

I mean, one of the things that's interesting here is that because the case hasn't gone to trial yet, the court has to decide the case based on its interpretation of the statute and thinking about the facts as alleged in the indictment only, not as established in a factual record at trial. The case is presented on a legal question of whether or not the obstruction of justice statute in question encompasses acts that are not aimed at altering evidence or things similar to documents and records as enumerated in the closely related statute of fifteen twelve C. One. The court I think is going to have to decide that legal question in a way that it has ramifications for all other similarly situated defendants who are charged based on obstructing the preceding without the allegation that they specifically were involved in the alteration of evidence or efforts to impede evidence being used in the preceding. So it's hard for me to imagine that the court renders an opinion that does not have broad application with respect to the other January sixth defendants, of whom there are at least three hundred charged with this crime. If there were a way for the court to write a narrow opinion that decided the case solely based on the facts is alleged against Fisher himself, that would mean it wouldn't have implications for other cases. But given the particular posture of this case and the way the question presented was framed and argued, it's difficult for me to see a very narrow holding.

I mean, one of the things that's interesting here is that because the case hasn't gone to trial yet, the court has to decide the case based on its interpretation of the statute and thinking about the facts as alleged in the indictment only, not as established in a factual record at trial. The case is presented on a legal question of whether or not the obstruction of justice statute in question encompasses acts that are not aimed at altering evidence or things similar to documents and records as enumerated in the closely related statute of fifteen twelve C. One. The court I think is going to have to decide that legal question in a way that it has ramifications for all other similarly situated defendants who are charged based on obstructing the preceding without the allegation that they specifically were involved in the alteration of evidence or efforts to impede evidence being used in the preceding. So it's hard for me to imagine that the court renders an opinion that does not have broad application with respect to the other January sixth defendants, of whom there are at least three hundred charged with this crime. If there were a way for the court to write a narrow opinion that decided the case solely based on the facts is alleged against Fisher himself, that would mean it wouldn't have implications for other cases. But given the particular posture of this case and the way the question presented was framed and argued, it's difficult for me to see a very narrow holding.

Thanks so much for your insights, Jessica, I appreciate it best, Professor Jessica Garroth of Cardozo Law School. Coming up next on The Bloomberg Law Show, It's day two of Donald Trump's hush money trial, and some jurors have actually been sworn in. I'm June Grosso and you're listening to Bloomberg.

Thanks so much for your insights, Jessica, I appreciate it best, Professor Jessica Garroth of Cardozo Law School. Coming up next on The Bloomberg Law Show, It's day two of Donald Trump's hush money trial, and some jurors have actually been sworn in. I'm June Grosso and you're listening to Bloomberg.

I think we have a very much appl clicked at.

I think we have a very much appl clicked at.

Judge shouldn't be on the case.

Judge shouldn't be on the case.

He's rushing this trial and.

He's rushing this trial and.

He's doing as much as he can for the Democrats.

He's doing as much as he can for the Democrats.

This is a Biden inspired win.

This is a Biden inspired win.

Shut day two of Donald Trump's criminal trial in the hush money case, and he had familiar complaints about the judge and new complaints about the speed of the trial. Jury selection did seem to go into overdrive this afternoon, with seven jurors sworn in and told to return on Monday. Could the judge be anticipating opening statements on Monday joining me to talk about the jury selection process. Is Michael Weinstein a partner at Cole Shots. I'm wondering if the reality of being a criminal defendant is setting in because during his civil trials, Trump could breathe in and out when he wanted to. Now he asked the judge to be off on Wednesdays when the trial is not in session, to go to Supreme Court arguments on presidential immunity, and the judge said, you know your client is a criminal defendant. He's required to be here. So it's different for Donald Trump now than it was in the civil cases.

Shut day two of Donald Trump's criminal trial in the hush money case, and he had familiar complaints about the judge and new complaints about the speed of the trial. Jury selection did seem to go into overdrive this afternoon, with seven jurors sworn in and told to return on Monday. Could the judge be anticipating opening statements on Monday joining me to talk about the jury selection process. Is Michael Weinstein a partner at Cole Shots. I'm wondering if the reality of being a criminal defendant is setting in because during his civil trials, Trump could breathe in and out when he wanted to. Now he asked the judge to be off on Wednesdays when the trial is not in session, to go to Supreme Court arguments on presidential immunity, and the judge said, you know your client is a criminal defendant. He's required to be here. So it's different for Donald Trump now than it was in the civil cases.

It is different, and the reality may have struck him, but I don't think we'll ever really know what he thinks about it, other than the way he positions himself in that he's getting persecuted, not prosecuted. I think he also will play this out in the media unlike any other defendant, And so even if he does feel somewhat abused by the system, he's going to turn that to his advantage.

It is different, and the reality may have struck him, but I don't think we'll ever really know what he thinks about it, other than the way he positions himself in that he's getting persecuted, not prosecuted. I think he also will play this out in the media unlike any other defendant, And so even if he does feel somewhat abused by the system, he's going to turn that to his advantage.

And I do want to straighten at one thing. Trump had said after court that the judge wouldn't let him skip court on May seventeen to attend his son's graduation from high school. But the judge has yet to rule on that, So I just want to clarify that.

And I do want to straighten at one thing. Trump had said after court that the judge wouldn't let him skip court on May seventeen to attend his son's graduation from high school. But the judge has yet to rule on that, So I just want to clarify that.

And oftentimes, you know, Trump says things which are belied by the facts, and so you know, he wants the world and the public to think every decision is being made against him, when in reality, some of the decisions being made by the court or specifically this judge are pretty traditional, you know, normal things that a judge would say when a criminal defendant is charged as he is here.

And oftentimes, you know, Trump says things which are belied by the facts, and so you know, he wants the world and the public to think every decision is being made against him, when in reality, some of the decisions being made by the court or specifically this judge are pretty traditional, you know, normal things that a judge would say when a criminal defendant is charged as he is here.

This is not the first time that Trump has, you know, tried to degrade the judges. He comes out of court or goes into court every day saying, this is a Trump paiding judge, he's biased. This judge is very professional. I assume he's not going to let that get to him. But what is the point of that. It just seems counterproductive. And even in the court room you have the lawyers repeating arguments.

This is not the first time that Trump has, you know, tried to degrade the judges. He comes out of court or goes into court every day saying, this is a Trump paiding judge, he's biased. This judge is very professional. I assume he's not going to let that get to him. But what is the point of that. It just seems counterproductive. And even in the court room you have the lawyers repeating arguments.

Because his audience is not the general public. His audience is his supporters where he could fundraise for his presidential campaign. So you have to look at it under the view of why is he doing it? And his motivation is very different than a normal criminal defendant, where they would be talking about the evidence and they'd be talking about, you know, their repute. Here he's using it as a narrative to support his overall candidacy, and that's why it's so different.

Because his audience is not the general public. His audience is his supporters where he could fundraise for his presidential campaign. So you have to look at it under the view of why is he doing it? And his motivation is very different than a normal criminal defendant, where they would be talking about the evidence and they'd be talking about, you know, their repute. Here he's using it as a narrative to support his overall candidacy, and that's why it's so different.

Last week, Trump said that jury selection is luck, and I'm wondering how much of that is true. How much of it is luck the kind of jury pool you get, and how much of it is the skill of the lawyers or you know, the knowledge of the judge.

Last week, Trump said that jury selection is luck, and I'm wondering how much of that is true. How much of it is luck the kind of jury pool you get, and how much of it is the skill of the lawyers or you know, the knowledge of the judge.

So look, being a criminal defense lawyer for twenty five years, I want to believe that there's some skill involved, so I won't agree with him that it's completely luck. There are some nuances, of course, to the selection process, just like if someone was painting their house. You know, painting a house is not traditionally hard, but there are nuances doing it properly and having an end result, which is good. I think the one thing that Trump doesn't appreciate, or does appreciate and is scared of, is that the jury pool from Manhattan, the City of New York, is heavily democratic, and therefore that does not bode well for him. So even if it's as he says it is, he's drawing from a jury pool which is not favorable for him in any way.

So look, being a criminal defense lawyer for twenty five years, I want to believe that there's some skill involved, so I won't agree with him that it's completely luck. There are some nuances, of course, to the selection process, just like if someone was painting their house. You know, painting a house is not traditionally hard, but there are nuances doing it properly and having an end result, which is good. I think the one thing that Trump doesn't appreciate, or does appreciate and is scared of, is that the jury pool from Manhattan, the City of New York, is heavily democratic, and therefore that does not bode well for him. So even if it's as he says it is, he's drawing from a jury pool which is not favorable for him in any way.

I think he.

I think he.

Understands that because he wanted to get the case moved to Staten Island, where the votes are in his favor, rather than in Manhattan, where he got only eleven percent of the vote.

Understands that because he wanted to get the case moved to Staten Island, where the votes are in his favor, rather than in Manhattan, where he got only eleven percent of the vote.

Yes, I'm sure he would love to have it move to Oklahoma or Indiana or one of the other states as well, but the likelihood of it being transferred out of the District of New York and Manhattan is pretty small. They handle these types of cases all the time. And this is putting aside the defendant himself. This issue fraud is a pretty bread and butter type of issue that's brought by these types of district attorney and prosecutor in Manhattan all the time.

Yes, I'm sure he would love to have it move to Oklahoma or Indiana or one of the other states as well, but the likelihood of it being transferred out of the District of New York and Manhattan is pretty small. They handle these types of cases all the time. And this is putting aside the defendant himself. This issue fraud is a pretty bread and butter type of issue that's brought by these types of district attorney and prosecutor in Manhattan all the time.

Now you'll hear lawyers, both prosecutors and defense attorneys say we just want a jury who can hear the evidence and be impartial. That's really not the case. They're looking for jurors who will be receptive to their case. So what are they looking for here.

Now you'll hear lawyers, both prosecutors and defense attorneys say we just want a jury who can hear the evidence and be impartial. That's really not the case. They're looking for jurors who will be receptive to their case. So what are they looking for here.

Well, of course they want a jury that is receptive to their case and is open to their arguments. But they can't say we want a jury that's only going to you know, believe me, as a defense lawyer and as a prosecutor, you can't. You can't be so clean and clear cut as to what you're looking for. You have to be a little more nuanced and being fair and impartial. And look, I mean, the prosecutor's trying to do the right thing and getting a fair and impartial jury. The defense lawyers are doing their part to get a jury to their narrative and their story, and ultimately, you know, history will show that difficult cases, you know, they are able to get jurors, and the jurors are able to hear it, and the cases they are able to be tried.

Well, of course they want a jury that is receptive to their case and is open to their arguments. But they can't say we want a jury that's only going to you know, believe me, as a defense lawyer and as a prosecutor, you can't. You can't be so clean and clear cut as to what you're looking for. You have to be a little more nuanced and being fair and impartial. And look, I mean, the prosecutor's trying to do the right thing and getting a fair and impartial jury. The defense lawyers are doing their part to get a jury to their narrative and their story, and ultimately, you know, history will show that difficult cases, you know, they are able to get jurors, and the jurors are able to hear it, and the cases they are able to be tried.

The going narrative that the defense is looking for more blue collar working class, less well educated, and the prosecution is looking for white collar and you know, college educated or better.

The going narrative that the defense is looking for more blue collar working class, less well educated, and the prosecution is looking for white collar and you know, college educated or better.

I suspect that's probably a fair representation. It's actually funny because if you look at it from a political standpoint, what Trump is looking for is really the base of the Democratic Party, and what the prosecutor is looking for is really the base of the Republican Party. So it's really flipped for purposes of bringing a case like this.

I suspect that's probably a fair representation. It's actually funny because if you look at it from a political standpoint, what Trump is looking for is really the base of the Democratic Party, and what the prosecutor is looking for is really the base of the Republican Party. So it's really flipped for purposes of bringing a case like this.

The jury questionnaire, there are lots of questions where you get your news from. So if you get jurors who say I get my news from MSNBC and the Times, and other jurors who say, well, I get my news from the Wall Street Journal and Fox, I mean, do you pretty much know what their political leanings are?

The jury questionnaire, there are lots of questions where you get your news from. So if you get jurors who say I get my news from MSNBC and the Times, and other jurors who say, well, I get my news from the Wall Street Journal and Fox, I mean, do you pretty much know what their political leanings are?

I think the answer is yes to a degree. But here's the key. The question is not whether the jurors like or dislike Donald Trump, but whether they're feelings would interfere with their ability to serve without bias. So even if they listen to Fox News and they read the Wall Street Journal, or they read the New York Times religiously and watch CNN in the evening, that's not the end of the test. You have to look and see whether or not by doing that it will influence their ability to be impartial and act without bias. That's the key.

I think the answer is yes to a degree. But here's the key. The question is not whether the jurors like or dislike Donald Trump, but whether they're feelings would interfere with their ability to serve without bias. So even if they listen to Fox News and they read the Wall Street Journal, or they read the New York Times religiously and watch CNN in the evening, that's not the end of the test. You have to look and see whether or not by doing that it will influence their ability to be impartial and act without bias. That's the key.

How do you avoid getting a stealth juror on the case, one who has an agenda either way?

How do you avoid getting a stealth juror on the case, one who has an agenda either way?

Yeah, that's difficult. That's always an issue in a criminal case, and you traditionally ask written questions and you ask them to answer under oath, and then each attorney is able to ask additional questions to flush out whether or not they have true feelings which didn't come out in the written questions, and then the judge of course has an opportunity to ask them questions as well. But it is always a risk, and there are cases where a stealth juror does kind of appear, but traditionally, through the juror selection process, you can try to flush those type of people out.

Yeah, that's difficult. That's always an issue in a criminal case, and you traditionally ask written questions and you ask them to answer under oath, and then each attorney is able to ask additional questions to flush out whether or not they have true feelings which didn't come out in the written questions, and then the judge of course has an opportunity to ask them questions as well. But it is always a risk, and there are cases where a stealth juror does kind of appear, but traditionally, through the juror selection process, you can try to flush those type of people out.

And in this case it's even harder because of the high profile nature. You have to believe that some jurors are going to want to get out on the jury just because of that. Today, a dismissed you, a dismissed juror did interviews on at least two cable news outlets, and you know, how much does she have to say after a day. So it seems like there are going to be a lot of people who want the attention and want to be on the case.

And in this case it's even harder because of the high profile nature. You have to believe that some jurors are going to want to get out on the jury just because of that. Today, a dismissed you, a dismissed juror did interviews on at least two cable news outlets, and you know, how much does she have to say after a day. So it seems like there are going to be a lot of people who want the attention and want to be on the case.

I think that's a fair concern. I think, you know, the risk also is social media. Is what are these people going to be posting either during your trial, in the evenings of the trial, immediately after the trial. In this day and age, you know, it seems like no one can keep a secret and everybody wants to talk at all times of the day and in all formats, And I think that's a real risk. I think what the judge will do is lay down the law and make it very clear to the jurors that they need to be, you know, off social media and not read papers and just be dedicated to the service at hand, which is listening to the evidence and making an ultimate decision on his guilt or innocence.

I think that's a fair concern. I think, you know, the risk also is social media. Is what are these people going to be posting either during your trial, in the evenings of the trial, immediately after the trial. In this day and age, you know, it seems like no one can keep a secret and everybody wants to talk at all times of the day and in all formats, And I think that's a real risk. I think what the judge will do is lay down the law and make it very clear to the jurors that they need to be, you know, off social media and not read papers and just be dedicated to the service at hand, which is listening to the evidence and making an ultimate decision on his guilt or innocence.

The judge admonished Trump at one point today after he apparently spoke loudly in gestured while the judge was questioning a woman about a social media post. I mean, how much are the jurors watching the defendant and sort of taking stock of him during the jury selection?

The judge admonished Trump at one point today after he apparently spoke loudly in gestured while the judge was questioning a woman about a social media post. I mean, how much are the jurors watching the defendant and sort of taking stock of him during the jury selection?

So look, I think jurors watch the defendants, the lawyers, the judge like a hawk. I think they pick up on even the most subtle things. I think they look to see what the defendant is saying to his council, whether he's writing furiously, whether he's nodding off, whether he's gasping, oh, I can't believe that type of you know, reaction. All of those things jurors pick up and I think that does start to lay the groundwork for, you know, whether they really like the defendant. And by extension, that does play into in my experience, whether or not, you know, they'll give the benefit of the doubt to the defendant. If a defendant is just so brusque and so rude and just you know, disregards everything about a juror and their service, I don't both well for them for the defendants.

So look, I think jurors watch the defendants, the lawyers, the judge like a hawk. I think they pick up on even the most subtle things. I think they look to see what the defendant is saying to his council, whether he's writing furiously, whether he's nodding off, whether he's gasping, oh, I can't believe that type of you know, reaction. All of those things jurors pick up and I think that does start to lay the groundwork for, you know, whether they really like the defendant. And by extension, that does play into in my experience, whether or not, you know, they'll give the benefit of the doubt to the defendant. If a defendant is just so brusque and so rude and just you know, disregards everything about a juror and their service, I don't both well for them for the defendants.

So Judge Wanmershawn, very experienced trial judge. He seems to have set the tone even during the pre trial motions. How important is it that He's set the tone as far as the gag order too, because Trump over the weekend commented on potential witnesses, not naming them, but it was obvious that it was Stormy Daniels and Michael Cohen, and the prosecutor is asking for him to be held in contempt and fined. Should the judge right now draw the line?

So Judge Wanmershawn, very experienced trial judge. He seems to have set the tone even during the pre trial motions. How important is it that He's set the tone as far as the gag order too, because Trump over the weekend commented on potential witnesses, not naming them, but it was obvious that it was Stormy Daniels and Michael Cohen, and the prosecutor is asking for him to be held in contempt and fined. Should the judge right now draw the line?

I think it's very important for this judge, or any judge in the situation like this, to make it very clear to defendants and counsel as to what is acceptable and what is not, especially since there is a pre existing gag order. What's happening here is Trump is flexing his muscle a little bit and trying to challenge the gag order. And if he's able to do that on day one, day two, day three of the trial, I can only imagine what's going to happen on day thirty and forty five. It's just going to be like there was no gag order in the first place. So I think the judge has to come down someone hard and somewhat strict and be very very strident with the defendant and his counsel about what's acceptable and what's not. Otherwise, all bets are off, and it's going to be as though the gag order never existed in the first place.

I think it's very important for this judge, or any judge in the situation like this, to make it very clear to defendants and counsel as to what is acceptable and what is not, especially since there is a pre existing gag order. What's happening here is Trump is flexing his muscle a little bit and trying to challenge the gag order. And if he's able to do that on day one, day two, day three of the trial, I can only imagine what's going to happen on day thirty and forty five. It's just going to be like there was no gag order in the first place. So I think the judge has to come down someone hard and somewhat strict and be very very strident with the defendant and his counsel about what's acceptable and what's not. Otherwise, all bets are off, and it's going to be as though the gag order never existed in the first place.

I'm sure there are more antics ahead. Thanks so much, Michael. That's former federal prosecutor Michael Weinstein of Cole Shots. And that's it for this edition of the Bloomberg Law Podcast. Remember you've can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, Slash Law. I'm June Grosso and this is Bloomberg

I'm sure there are more antics ahead. Thanks so much, Michael. That's former federal prosecutor Michael Weinstein of Cole Shots. And that's it for this edition of the Bloomberg Law Podcast. Remember you've can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, Slash Law. I'm June Grosso and this is Bloomberg