The One Weird Trick Trump Could Use to Get Away with January 6th

The Florida fishing tale that could let Trump off the hook.

(Compostie / Photos: GettyImages / Shutterstock)

FAR FROM SHORE AFTER A WEEK at sea, a Florida fisherman named John Yates was busted by wildlife officials for catching grouper that were too small. But before returning to the dock a day later, Yates chucked the contraband fish overboard rather than hand them over to authorities.

So the federal government charged Yates with destroying evidence under a law passed in response to the energy giant Enron and its shady financial practices.

Called the Sarbanes-Oxley Act, the law was intended to crack down on financial fraud and evidence destruction. Yates argued that the law governed document shredding and fish aren’t documents. Eight years later, the Supreme Court sided with the fisherman in a precedent-setting 2015 decision that limited prosecutions.

Today, that dump of grouper could wind up getting Donald Trump off the hook for January 6th.

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Trump and about 300 other defendants have been charged under another Sarbanes-Oxley provision, related to Yates, that prevents the disruption of an “official proceeding.” In this case, the official proceeding was Congress’s January 6, 2021 certification of President Joe Biden’s victory.

And just like the Yates case, the Supreme Court is being asked to decide whether or not federal prosecutors using a Sarbanes-Oxley statute in a novel way will be allowed to do so.

The Court is scheduled to hear oral arguments on April 16 in a case involving three January 6th defendants, but not Trump. Citing the Yates ruling, the defendants call the statute they’re charged under—18 USC 1512(c)(2)—an “anti-shredding” law related to investigations and evidentiary hearings, not a riot intended to stop congressional vote certification.

“Whatever the Supreme Court does in 1512 could have a massive impact on our case. Half of the charges in our indictment relate to 1512,” said one Trump adviser familiar with his legal strategy, discussed here for the first time. “If half the charges are gone, by definition, it makes it easier to defend. Our position is that the government’s introduction of the issue of violence on January 6 is tied to 1512. If that goes, what happens to the case?”

Critics dispute this reading of the Trump indictment, saying that the facts about the riot and violence are integral to the other two counts, conspiracy against rights and conspiracy to defraud the United States. The two 1512 charges concern obstructing Congress and a related conspiracy count.

Trump critics and insiders alike say there’s only upside for Trump, considering the Court’s decision to take the case, the justices’ prior rulings that limit federal prosecutorial power, and the six-to-three advantage of Republican-appointees on the bench.

Said another Trump insider: “If we win, Trump owes John Yates a day at Mar-a-Lago.”

Yates couldn’t be reached for comment.

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The case the SCOTUS will hear next month, Joseph W. Fischer v. United States, involves Fischer and two other men, Edward Lang and Garrett Miller, in three separate Capitol breaching incidents.

Fischer is crucial to Trump not only because it could gut two of the four charges he faces in his January 6th case; his legal team also believes a favorable ruling in Fischer could work in tandem with the presidential immunity appeal the Court agreed to hear this term.

In the eyes of Trump insiders, the Fischer appeal could have more of an impact on the former president, despite the relative paucity of coverage compared to the immunity argument.

“Everyone’s talking about immunity and they’re not really talking about Fischer and they’re not talking about how important Yates is to all of this,” said a Trump confidant who has been briefed on aspects of the legal strategy. “Trump would love total presidential immunity, but the lawyers know that’s probably not going to happen. . . . But they’re a lot more bullish on the Fischer case and 1512.”

One legal expert called the Fischer case a “sleeping giant.”

The Trump team’s theory is that by throwing out the 1512 charges, the Court could avoid wading too far into the issue of presidential immunity, about which even some pro-Trump lawyers privately express grave doubts. Fischer could be the Supreme Court’s off-ramp for the immunity case.

When the Court announced last week that it would hear Trump’s immunity challenge, it marked a victory for him insofar as it builds in further delays in the January 6th case. He wants both that case and his federal classified documents case to go to trial after the election. Because if he wins, Trump plans either to have the Department of Justice drop the suits or to pardon himself.

And any ruling that limits federal prosecutors in Fischer will likely arm Trump with more court motions to slow the proceedings down.

Trump didn’t file a friend-of-the-court brief in Fischer because the former president’s team does not want him to be too closely associated with the defendants. Instead, the Trump-aligned America First Legal Foundation submitted a brief in Fischer, advancing Trump’s arguments about alleged election interference.

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Even experts who tend to view the government’s January 6th prosecutions favorably say they would not be surprised if the Supreme Court scaled back the use of the “official proceeding” statute in Fischer because of long-standing concerns about federal prosecutorial power.

“Yates wasn't just a case. It was an expression of a concern the Court had about federal criminal law generally, and the justices used what they considered to be an egregious case to make their point,” said Daniel Richman, a former federal prosecutor and Columbia University professor who teaches the Yates and Fischer cases in his classes.

Without the Yates case, Richman said, it’s more doubtful Fischer would have made it to the Supreme Court. He said the statutes in the two cases have “sufficient commonalities” that inextricably bind them.

Still, Yates was easier for the justices to decide. It didn’t involve a former president and GOP presidential nominee during an election year. It didn’t revolve around a mob sacking the U.S. Capitol in an attempt to derail the transition of power. Also, the statute John Yates was prosecuted under, 1519, was more clearly identifiable as a records statute when compared to 1512.

Writing for the plurality in the five-to-four decision in Yates, Justice Ruth Bader Ginsburg said fish just aren’t really evidence in the context of Sarbanes-Oxley, and so the government’s prosecution of Yates cut it “loose from its financial-fraud mooring.”

“Fish one may fry, but may one falsify, or make a false entry in the sea-dwelling creatures?” Ginsburg asked when she handed down the ruling.

In the Trump and Fischer cases, the Justice Department argues the statute’s plain language should be read plainly as is: “whoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so” should face fines and upward of 20 years in prison.

In a two-to-one decision on April 7, the Court of Appeals for the D.C. Circuit agreed with the DOJ. The law functions as a broad, standalone catch-all that “applies to all forms of corrupt obstruction of an official proceeding,” Judge Florence Pan, a Biden appointee, wrote in the majority opinion with Judge Justin R. Walker, a Trump appointee.

But another Trump appointee, Judge Gregory Katsas, dissented, saying the interpretation was “implausibly broad and unconstitutional.” Echoing the Yates case, he said the statute needed to be read in the context of 1512(c)(1) that relates to records or documents.

If the Supreme Court rules in Fischer’s favor, it could require special counsel Jack Smith to prove the defendants “corruptly” manipulated documents or records in some way. The degree to which that would affect Trump’s case, in light of the fake electors scheme, is unclear.

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Regardless, even the government “admits this is a novel approach and that it’s never been applied outside of evidentiary impairment,” said Fritz Ulrich, an attorney for Fischer.

A related section of the law, though, defines “official proceeding” as a “proceeding before the Congress.” Also, in a 2002 press release, President George W. Bush said the law would cover not just “document shredding” but “other forms of obstruction of justice,” a phrase repeated by other politicians at the time. 

The courts have allowed prosecutors wide berth in other cases governing obstruction, Richman said, but the circumstances in which this case is being decided are unique.

“The idea that the justices are going to play in a vacuum is not something I think human beings would be capable of doing, and definitely not something this Court is going to be able to do,” Richman said.

“At the heart of so many of the federal criminal law cases in recent years, including Yates, has been this question of how closely you read a statute and to what extent you’re worried about the prosecution of various hypothetical people who the Court will reason are worthy of protection,” he said. “Here, the people that will be protected by an adverse ruling against the government are well known and notorious.”

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The friction between Trump and the Department of Justice over 1512(c)(2) predates January 6th.

It first surfaced as part of special counsel Robert Mueller’s obstruction of justice and Russian election interference investigation in 2018-2019. At the beginning of the investigation, then-private citizen Bill Barr sent Mueller an unsolicited memo concerning the statute that raised objections about the probe and referenced Yates.

Mueller ignored the memo (which was widely criticized by legal experts) but Barr’s advocacy for Trump ultimately led to his appointment as attorney general.

Last October, Trump tried to have the January 6th case dismissed and argued “the indictment takes a statute directed at the destruction of records in accounting fraud and applies it to disputing the outcome of a Presidential election.” But Judge Tanya Chutkan, an Obama appointee, ruled against him.

Normally, that would have prevented Trump’s arguments from reaching the Supreme Court before trial. 

But the parallel cases that became Fischer made it to the D.C. Circuit after Judge Carl Nichols, a Trump appointee, on March 7 ruled against the government’s prosecution of Miller. The Justice Department appealed, triggering the chain of events that led to the Supreme Court to take the case in December.

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One former assistant U.S. attorney who has prosecuted defendants under Sarbanes-Oxley said he believed that Yates was decided incorrectly in 2015, and since then, the Court has grown even more wary of prosecutorial overreach.

“Yates reflects a broader approach to criminal statutes that the Court has taken to criminal statutes where the justices have been eager to put some limits on criminal liability; they think prosecutors in too many instances are bringing edge cases that go over the line and stretch the criminal statutes that go over the line,” said the former prosecutor, who is now in private practice and spoke on condition of anonymity due to the sensitivities of weighing in on the politically explosive case.

“This is a majority-Republican Supreme Court, most of whom are originalist or in some form are originalist, and who therefore will respect the separation of powers, and who hold to the notion that the Supreme Court was not created for the purpose of deciding an election,” said a Trump adviser who has discussed the January 6th case with the former president and relayed his team’s thinking on condition of anonymity.

“The Court does not want to get involved in cases so close to an election. And no one has ever seen anything like this,” the source said. “So if you think Roberts and Kavanaugh aren’t talking about this, then you’re fooling yourself.”