As the fallout from the momentous Supreme Court decision on presidential immunity continues to reverberate, MSNBC legal analysts Andrew Weissmann and Mary McCord offer some updates, then turn to another significant ruling from the High Court out on Friday: Fisher v. U.S. At issue was whether the charge of obstruction of an official proceeding could be applied to Capitol rioters in the wake of their actions on January 6th. Despite the ruling in favor of the defendant, their guest Ryan Goodman of Just Security confirms the limited impact this decision will have on those charged for their role in the chaos of January 6th, and for Donald Trump’s election interference case in DC.
Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, and welcome back to Prosecuting Donald Trump. It’s Tuesday, July 2nd and I’m Andrew Weissman, and I’m here with my co-host, Mary McCord.
Mary McCord: Good morning, Andrew. Seems like I just was on with you.
Andrew Weissmann: Yeah, well, guess what? That’s because we were.
Mary McCord: Oh, we were! Okay.
Andrew Weissmann: Yeah, so this is going to be an episode where we talk to another NYU colleague, Ryan Goodman. And we’ll turn to that in a moment. I know that you just heard from us talking about the immunity decision. There are a couple of things we wanted to flag before we talk with Ryan about the case that came out. It feels like a year ago, but was just last week, which is the Fischer decision. But there are some things we wanted to flag in connection with the immunity decision. So, Mary, do you want to start us off on that?
Mary McCord: Sure, because yesterday after we recorded, more things happened. Surprise, surprise. One of which is that Donald Trump, through his attorneys, sent a letter to Judge Merchan, that is the judge in the Manhattan trial for which he was found guilty a month ago, I don’t know, time is impossible now, of multiple felonies related to his payment of hush money to Stormy Daniels to keep her from talking about things that would have affected the election back in 2016.
So as we await his sentencing, which is scheduled for next week, July 11th, as soon as this immunity decision came out, Mr. Trump’s attorney sent a letter to Judge Merchan asking permission to file a motion to set aside the verdict on the grounds that he is immune from that prosecution.
Now, again, we have not seen this letter. This was reported by the “New York Times,” and we have not seen the substantive motion yet. Right now he’s saying, put off my sentencing. Let me file a motion to set aside these verdicts because I can’t be prosecuted because I’m immune.
Now, Andrew, I don’t know about you, but if my recollection of us covering that trial every single day by reading the transcripts, or you in many cases going to it and us discussing it on the podcast twice a week, my recollection is that the payments to Stormy Daniels occurred before Mr. Trump was in the White House, and it’s kind of hard to imagine how reimbursement for those payments could be official acts. But what do you think?
Andrew Weissmann: Yeah, I think that if you’re the defense lawyer, you’re going to make this motion.
Mary McCord: Of course.
Andrew Weissmann: You should. You know, if there’s a 1% chance, you make it. There’s no question that the conduct at issue is unofficial. Yes, there is conduct that occurred while Donald Trump was president. There’s conduct that occurred before he was president that forms the basis of the scheme that was charged and for which he was convicted. But there was conduct while he was president, for instance, the reimbursements.
Mary McCord: The signing of the checks.
Andrew Weissmann: Many of those were signed in the Oval Office. But obviously, that reimbursement of payments to Stormy Daniels is the most quintessential personal material. However, this is where the Supreme Court immunity decision is particularly egregious because there’s a 5-4 split, not 6-3, 5-4 split on once something is considered an official act, it cannot be used, according to the majority in court and —
Mary McCord: As evidence.
Andrew Weissmann: As evidence. And so the argument is going to be made that certain tweets, certain testimony about things that Donald Trump did while he was president constitute official acts and so that should be kept out.
Mary McCord: So let’s break that down for a second, though, to make sure. So the case was about the payment, creating false business records to cover up these payments. The payments, of course, to Stormy Daniels were made before Mr. Trump was president. But as you just indicated, at trial, there was also evidence elicited that Mr. Trump signed checks reimbursing Michael Cohen, remember, falsely claiming this was for legal services by paying monthly payments over the course of basically his first year as president.
So this means that evidence came in of things he did while he was in the Oval Office doesn’t necessarily mean those are official acts because just being in the Oval Office doesn’t make him an official act.
Andrew Weissmann: Right.
Mary McCord: So there will be an argument about that. But then there were other things that happened that came into evidence while he was president, including, as you just indicated, some of his social media posts kind of talking about this, right. Again, I think most of us would be like, you’re talking about a personal thing, not official act. But there’s something we’re in analysis his attorneys will argue has to happen. And then there was Hope Hicks, for example, as well as Madeleine. Help me out here, Wester —
Andrew Weissmann: Westerhout.
Mary McCord: Westerhout.
Andrew Weissmann: Westerhout.
Mary McCord: Yes, who worked in the White House, who also testified about what they knew of this issue that I’m sure his attorneys will argue those are official acts. So before we get to the point of none of that can be admitted into evidence, we’ve got to determine if those are even official acts, right?
Andrew Weissmann: Absolutely. As well as so much of that, I think, will be viewed as not official. Second, even if it’s viewed as official, for instance, sending out a tweet, they’ll say, well, that’s part of my official acts is being president, is communicating with the citizenry that if it’s public and in the public domain, the idea that you can’t use it. And that’s actually even flagged in a footnote as something that should be allowed.
Mary McCord: By the chief —
Andrew Weissmann: Yes, exactly.
Mary McCord: — by the chief justice who wrote the majority opinion. Yes.
Andrew Weissmann: Because it’s like, how could that possibly in any way affect the functioning of the presidency in any sort of meaningful way? So, again, there’ll be arguments on this. The third issue is that the whole issue of immunity, there’s a really good argument that it was waived, that both the trial judge, Judge Merchan, but also when Donald Trump was trying to remove this case to federal court, the federal judge who handled the case said that the issue was waived.
So then finally, by the way, even if Donald Trump were to win all of this, that it’s official, it should be kept out, it wasn’t waived, it also then has to be material. Meaning if you keep out something that is a grain of sand on the beach, the judge can say this wouldn’t have changed the result in any way. You’re entitled to a constitutionally valid trial. You’re not entitled to a perfect trial. And sometimes evidence is let in that shouldn’t have been, but it has to be material.
Mary McCord: Right. That’s called harmless air, right?
Andrew Weissmann: Exactly. There can’t be something that’s just so extraneous that you say it has an effect on the result and the judge can say, no, it’s too minor. So there are lots and lots of arguments. We’re really just flagging the issue. Some of the things that Mary, you and I are talking about, we’ll wait and see sort of how it gets —
Mary McCord: Yeah.
Andrew Weissmann: — played out. I have to say, I don’t fault the defense for raising it. I mean, it was kind of like a gift given to them by the majority that was shocking, given that Chief Justice Roberts in the oral argument of the immunity case was on the side of Amy Coney Barrett, that this should be allowed into evidence, that they sort of, as we talked about yesterday, that he really flipped.
And so I understand why the defense is making this argument, but this is one of the, you know, I’d love to say unintended consequences, but I think I’m going to say intended consequences —
Mary McCord: Yeah.
Andrew Weissmann: — is that you have this motion now.
Mary McCord: Yeah. So the other thing that we wanted to flag is not something actually new that developed after our podcast yesterday, but something we just didn’t get a chance to talk about. And that was the Thomas concurrence. So Justice Thomas, not surprisingly, agreed with the majority in terms of their substantive ruling about immunity. But he wrote separately, and it’s fairly short, to say essentially that he also thinks that Jack Smith was not constitutionally appointed.
And this is the argument that we have talked about recently when we’ve talked about some of the motions to dismiss pending before Judge Cannon. In fact, the motion that was argued, I guess, a week ago Friday, if I’m getting my dates right, where Mr. Trump and his attorneys had argued that Jack Smith was not constitutionally appointed under the appointments clause. And they also made a separate argument that he wasn’t funded appropriately under the appropriations clause.
Justice Thomas here, somewhat gratuitously, in my opinion, because, of course, this was not at all part of the briefing or argument or question presented or question accepted by the completely separate. Yes?
Andrew Weissmann: Mary, could we take out the word somewhat?
Mary McCord: Yeah. Okay, because yes, because as you can tell, I’m being triggered here. I’m on trigger avenue. Let’s write about something totally not briefed. Yes. You know, it says, look, the appointments clause says that appointments have to be provided for either in the Constitution or be established by law appointments for people with the kind of authority that he thinks Jack Smith has. He says it’s difficult to see how the special counsel has an office established by law as required by the Constitution.
And if Congress has not reached a consensus that a particular office should exist, the executive lacks the power to unilaterally create and then fill that office. Given that the special counsel purports to wield the executive branch’s power to prosecute, the consequences are weighty. So he weighs in on something completely different to say Jack Smith’s appointment is unconstitutional. And in my opinion, this is almost like trying to lay a road map for Judge Cannon, who still has this motion pending before her. I kind of hate saying that, actually, but I doubt she’s listening to our podcast.
Andrew Weissmann: Yeah. So, notably what he’s put out there and in this gratuitous fashion. And by the way, you’re really supposed to address issues that are presented, not these other issues that are not brief. That’s just a straightforward proposition that all courts are supposed to follow. But what he’s saying would actually apply to other special counsels. So right now, David Weiss is a special counsel who is prosecuting Hunter Biden, I didn’t see that.
Mary McCord: No, I didn’t see that in here. Yeah.
Andrew Weissmann: Mary, can you tell me, did you see Justice Thomas talk about how David Weiss shouldn’t be appointed? Yeah.
Mary McCord: No. I’m looking. I’m scanning. I’m skimming. I’m scanning.
Andrew Weissmann: Yeah.
Mary McCord: I’m not seeing it.
Andrew Weissmann: You’re not seeing any reference to that?
Mary McCord: Yeah.
Andrew Weissmann: What about Rob Hur? Did you see a reference to Rob Hur with that?
Mary McCord: Not seeing that.
Andrew Weissmann: Yeah. So, you know.
Mary McCord: And I should say, I mean, just to correct myself, he doesn’t say is unconstitutional. He says there are serious questions whether the attorney general has violated the constitutional structure by creating this office. So I’m sure that’s the wiggle room he’s leaving for some of those other special counsels.
Andrew Weissmann: Yeah, that’s great. Mary, let’s preview. We’re about to have Ryan Goodman come on to talk to us about the Fischer case that happened a year ago, which means Friday.
Mary McCord: Friday.
Andrew Weissmann: So, can you remind us what the Fischer case is, and then we’ll get more into a deep dive with Ryan.
Mary McCord: Sure. Fischer is one of the thousands of folks who attacked the U.S. Capitol on January 6th, more than 1,400 of whom have been prosecuted. He was —
Andrew Weissmann: Alleged. Alleged.
Mary McCord: Alleged. Alleged.
Andrew Weissmann: Because he hasn’t gone to trial yet.
Mary McCord: That’s right. He has not. He was charged with obstruction of an official proceeding, as well as many other offenses, including assaulting law enforcement officers. He’s not yet been to trial. He challenged the government’s use of that obstruction charged against him. That is the issue that went up to the Supreme Court. That is the issue that the Supreme Court decided on Friday.
It obviously has implications for other cases of the rioters and how they’ve been charged. It has implications, although I think almost none for Mr. Trump. And we’re going to dive into all of that after the break.
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Mary McCord: Welcome back. As promised, we are very pleased to have join us today, Ryan Goodman. Ryan is the founding co-editor-in-chief of Just Security. He is a law professor and co-director of the Reese Center on Law and Security at New York University School of Law. You’ll see a theme here. Two days in a row, two NYU professors joining us. And he served as special counsel to the general counsel of the Department of Defense from 2015 to 2016. So good to have you here with us this morning, Ryan.
Ryan Goodman: Thanks so much for the invitation to be here with you guys.
Andrew Weissmann: So Ryan and I teach national security law at NYU. And Ryan, I thought maybe —
Mary McCord: And I’ve actually guest taught with you, so there you go.
Andrew Weissmann: Every year.
Mary McCord: We just get the band back together.
Andrew Weissmann: And I think I’ve told this story, but it hasn’t been told in a long time. And since we’re at the point where I only have so many anecdotes, even at my age. But when Mary teaches, my favorite student reaction was the week after Mary came and taught, a student came up to me and said, you know, I figured out what I want to do with the rest of my life. And I was like, okay, that’s pretty impressive. I mean, you know, this is a law student. So they’re really just beginning in their career. And I said, so what? What are you thinking of? And she said, I decided I want to be Mary McCord.
Mary McCord: No, she doesn’t. Very flattering, but no.
Andrew Weissmann: So Ryan, I thought maybe the first thing is one of the things that Mary said when she was introducing you was to talk about your being the co-editor in chief at something called Just Security. And we’re going to be talking about a piece that you were the primary author that I will say Mary and I —
Mary McCord: Kind of hung on, yeah, right.
Andrew Weissmann: — and yeah, we flagged minor issues, but it was your brainchild. But before we do that, do you want to just talk about what exactly is Just Security? And even though we’ll in the show notes have a link to the particular article that we’re going to talk about, there’s so much more on Just Security. So I thought maybe we’d first just talk about what is it?
Ryan Goodman: Thanks so much and also thank you for being equal partners on our joint project. But so Just Security is an online forum, like a publication or magazine that one might think of that’s just purely online based here at NYU School of Law. And it primarily brings top level legal experts, but also policy experts to address issues at the intersection of security, rights, democracy, rule of law.
And I think one of the things that we do, we do multiple things, but one of the things that we do quite well is by having those experts weigh in on tippy top pressing issues and to be able to do it at a rapid reaction. And then otherwise deep dives and highly researched pieces like the one we’ll be discussing today that is able to parse data in the ways that scholars and experts generally do.
Andrew Weissmann: So the other thing I note that you do, Ryan, is that Just Security has a podcast. So we’ll plug that on our podcast. It’s really terrific. And it’s a very good companion piece to the articles that you put out. And it’s a different forum and format to be able to access them. So, Ryan, tell us what you were thinking of when you had the idea of doing this piece, because a lot of the work was while the Fischer case was pending, sort of how you saw the piece and how it related to the Fischer arguments and what you were trying to accomplish.
Ryan Goodman: Sure. So tracking very closely all of the Department of Justice’s January 6 cases, of which there were over 1,400 individuals charged, the one issue that came all the way to the Supreme Court is this issue of whether or not individuals could be charged in a particular obstruction statute. And a lot seemed to hang in the balance, because at one point it even seemed to be the modal category, the number one charge that was being brought that individuals had engaged in obstructing the congressional proceedings.
So it seems very high stakes. And that was the general understanding, I think, of most experts, myself included, I should even put it that way, when this came to the Supreme Court. So if the Supreme Court invalidated the Justice Department’s use of the statute and the ways in which they had employed it in these cases, it looked like a large portion of all of the Justice Department’s work could go away. And the question in my mind was, what would the reaction to that be? Because you could see the train coming. That seemed to be the direction the Supreme Court was going to take.
And what would be the reaction? How might that feed into a lot of disinformation? And what could we anticipate ahead of time to preempt and ward off that disinformation? Like the way in which you could easily imagine something like that coming out of the Supreme Court could be deployed in a disinformation environment to make big arguments about, oh, see that? There’s the weaponization of the Department of Justice. See that? It’s all over-criminalization of politics. They’ve used a statute that’s completely invalid. It’s overreach.
And so it was based on that that I thought, let’s do a deep dive into the project to see really how the department has used the statute. How many cases does this really affect and the like?
Mary McCord: So before we get into that analysis, let’s make sure all listeners are understanding what statute we’re talking about. This is a statute that is, the actual citation to it is 18 United States Code §1512(c). And it has two parts, a part 1, (c)1, and a part 2, (c)2. Under (c)1, it is unlawful to alter, destroy, mutilate, or conceal a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding.
That is not the statute that the Department of Justice charged in most of these cases against those who attacked the Capitol on January 6. (c)2, however, prohibits otherwise, and that is a quote, otherwise obstructing, influencing, or impeding an official proceeding. So the government’s theory was that by violently attacking the Capitol and prohibiting Congress through that attack from engaging in the joint session on January 6, as required by law to count the Electoral College votes, those attackers were otherwise obstructing, influencing, or impeding an official proceeding.
So that’s the issue that went to the Supreme Court. 14 out of 15 district court judges appointed by presidents, both Republican and Democratic, had said, yes, that otherwise clause, (c)2, applies to this type of conduct. One judge had said, no, I feel like because of (c)1, it needs to have something to do with impairing the integrity or availability of some sort of evidence. That’s the issue. And I should also say in the D.C. Circuit, the D.C. Circuit panel, a three-judge panel, agreed with the 14 judges and not with the one that this statute could apply to the conduct of the rioters with one dissenter.
That’s the issue went to the Supreme Court. The Supreme Court ended up ruling in a six-to-three decision, but the six-to-three is not the ideological split we’ve become accustomed to. We can talk about that. The (c)2 is informed by (c)1, so it’s not otherwise meaning in every other means possible, but that it has to be tethered to (c)1.
However, it gave an expansive, to our minds, I think, Ryan and Andrew, an expansive reading of (c)2, saying that it encompasses more than obviously just altering a document record or other object, because that’s in (c)1, but it encompasses creating false evidence as well as impairing the availability or integrity of other things used in an official proceeding, and this is important, beyond records, documents or other objects, including witness testimony or intangible information. So that’s where we are on the law.
Andrew Weissmann: So what’s really interesting about that is it was quite expansive in terms of, well, it does tether it (c)2 to (c)1. It basically says anything having to do with evidence. And evidence can be tangible, it can be intangible, it can be documents, it can be witnesses.
Mary McCord: It can be information.
Andrew Weissmann: Exactly. Now, what it doesn’t include is if you are just attacking the Capitol to obstruct the proceeding, but you’re not in any way, there’s no intent to affect information going to the proceeding. You’re not trying to destroy documents, alter the testimony of somebody, keep information from somebody. In other words, that’s not part of your intent or even effect. That would be carved out. But there is this ability within a fairly, I thought, expansive view. In other words, it could have been worse, is what I would say.
Mary McCord: Exactly.
Andrew Weissmann: The other thing I just wanted to say about the 14 to 1, which I’m going to ask Ryan about that, but the interesting thing about the 14 to 1 at the district court level with 14 judges saying that the government was right and one judge saying, no, I think (c)2 should be cabined more closely to (c)1, is that three of the 14 judges were nominated by Donald Trump.
So especially since we’ve talked so much about Judge Cannon and who appoints who, this is a case where, as you said, Mary, it’s not just Republican and Democratic, but even judges who are appointed by Donald Trump looked at this and said, this is a permissible use. And I think that just goes a long way, that hard data goes a long way to dispel this idea that this is the Department of Justice doing something novel that was politically motivated and outside the box, because you really don’t have that just in terms of how the district courts ruled on this.
Ryan Goodman: Right. And just to add in a couple other data points on that, in addition to the three Trump appointed judges at the district level, there’s also a Reagan and George W. Bush appointees in the 14. And something that I have not seen remarked on publicly, when we’re talking about the question of was this a political use of the statute, what people miss is it is not the Biden Justice Department that is first to use the statute in this way. It is the Trump Justice Department before January 20th, 2021. The first charges that they bring include the very statute used for these kinds of conduct. So it’s actually it crosses over both administrations as well.
Mary McCord: And that’s right, because people, I think, sometimes forget, right, January 6th obviously happened two weeks, almost two weeks before the inauguration and then transition. And there were multiple cases brought quickly in those couple of weeks.
Andrew Weissmann: Yeah, that’s what happens when you commit crimes in front of law enforcement, you would think.
Mary McCord: That’s right.
Andrew Weissmann: So, Ryan, turning back to the project in terms of you were saying that you wanted to sort of do this deep dive to sort of test out what would the effects be. So tell us what you did and what your statistics found and sort of how you, to use the crazy word, bucketized the groups.
Ryan Goodman: Yeah. So NPR has a database of all of the January 6th defendants and they track it very closely. They update it every week. So that includes what are individuals charged for? What have they been convicted of? Did they plead guilty? Did they plead guilty to which charges? So we were already in conversation with NPR about their database, which we’re using for another big project. And along came the Supreme Court oral argument and then the decision was about to be handed down.
And we went into the NPR database, thanks to their extraordinarily diligent work, to collect all of the cases that have been used for this charge. And it started to produce a very dramatic effect. So basically the idea is that the invalidation of this particular use of the statute for capital rioters does not affect that many cases. It’s actually very small. The way that the mainstream media had been covering it before the Supreme Court’s opinion is to say there are a huge number of cases, basically 350 people have been charged with this crime.
Andrew Weissmann: So that’s about a quarter of the people.
Ryan Goodman: Exactly.
Andrew Weissmann: Okay.
Ryan Goodman: So that’s a quarter. That’s a sizable number of the January 6th defendants. Well, what that misses is, for example, individuals that are not affected whatsoever by the Supreme Court opinion. A good quarter of that quarter are individuals who, yes, they were charged for this obstruction statute, 1512 (c)2, but they pled to other crimes and not to the 1512 (c)2.
Mary McCord: Right.
Ryan Goodman: So their sentences, their pleadings, everything remains completely intact. That’s one part of it. That already whittles it down quite a lot. The other part is —
Mary McCord: And we should also remind people, I mean, we said a quarter, but let’s just put the big number out there, right? More than 1400 people have been charged. So when we’re at 350 a quarter, I mean, that’s already a huge number of people who were never even charged. Now you’re saying about a quarter of that quarter pled guilty to something else, has been sentenced, no impact.
Andrew Weissmann: Three quarters for whom this is just entirely irrelevant because there’s not a 1512 (c)2 charge. Then of the 340 or so, a quarter of that, they pled to something completely unrelated.
Ryan Goodman: Correct. So they’re completely unaffected. And then the next question is how many people are still materially unaffected? So there’s a majority of the individuals charged with this crime. If they were convicted, either based on a plea deal or by trial, super majority of them were convicted for other felonies as well. So there’s other felonies stay.
And then thanks to y’all’s analysis from the vast experience that the two of you have, we also then analyze the database to show and to make the point that in the recharging of these individuals, so it might now go back for recharging, the judges can still use the underlying bad conduct, even though it’s no longer charged, because that would still be a legitimate part of the sentencing guidelines for the judges to determine what the sentence should be. So other ways in which it still remains highly relevant, the conduct of entering the Capitol to interrupt the certification of the election by Congress.
Mary McCord: And could I just interject there? Because one of the things that people, a lot of people talk about is, oh, this offense carries a 20 year penalty. So even if you’re convicted of other felonies, this was the big one with 20 years. For the most part, people have not been getting sentenced to things like 20 years. I mean, most of the double digit sentences have involved people like the Oath Keepers and Proud Boys who were convicted of seditious conspiracy, which also carries a 20 year sentence.
And a few others who had very violent assaults on police officers, for example, got double digit sentences. But to this point about those who may need to be resentenced, and the judges can still take into consideration the conduct underlying the obstruction offense, in many cases, their sentences, I suspect, will end up being the same as what they were because they weren’t getting 20 years. They were getting something less than that and something well within the maximum for the felonies for which they were convicted.
Andrew Weissmann: Yeah. One sort of pointer for our listeners is it’s so annoying, I think, for prosecutors and defense lawyers when the media and others just immediately jump to the maximum sentence. And a lot of times when you hear about somebody who’s been charged with something, the media says, and they could face 120 years in jail —
Mary McCord: Right.
Andrew Weissmann: — because there’s six charges and each of them carries a 20 year maximum. And Mary and I both go, are you freaking kidding me? I mean, that’s absurd because there are guidelines and no judge is thinking 120 years. Just because there’s a maximum, you could cover that just as much if you want to cover the minimum. And so it’s just not in any way predictive of what the person is likely to get.
And just the other point, just to underscore something you said, Mary, which is the people who’ve gotten high sentences have been charged with things like seditious conspiracy or assaulting an actual police officer. So the 1512(c)2 is not the charge that’s doing the work in terms of the sentencing. But Ryan, I think you look like there’s something you wanted to say, and then we thought we’d take a quick break and we have a lot more questions to ask you about the piece.
Ryan Goodman: Sure. Just to piggyback on something that you just said, Andrew, which is just take Joseph Fischer himself, the lead plaintiff in the case. So he has not yet gone to trial. This was a pre-trial motion. It is possible that the obstruction statute now cannot be charged against him. We can discuss whether or not it actually still.
Mary McCord: We’ll come back to that, yes.
Ryan Goodman: Yes. But he, like the other two defendants that were consolidated in this case, all three of them have other felonies. Those felonies include assaulting law enforcement officers. So their fate as to whether or not they’re going to serve time in jail may be unaffected by the Supreme Court ruling, even though the Supreme Court ruling is in their favor.
Andrew Weissmann: So why don’t we take a quick break and then let’s come back to this issue of whether Mr. Fischer could still be charged with the obstruction charge, the (c)2 charge because I think it also allows to talk a little bit about the split in the Supreme Court and Ketanji Brown-Jackson and where she ended up and —
Mary McCord: And Amy Coney Barrett and where she ended up.
Andrew Weissmann: Exactly. Because she is such an interesting character, but this is the tease.
Mary McCord: Yes. We’re going over the cliff. Okay. Let’s leave it hanging on the cliff. Okay.
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Andrew Weissmann: Welcome back, Ryan. Why don’t we talk about under what circumstances do you think that Mr. Fischer could still be charged with an obstruction charge under (c)2 that’ll take us into some of the opinions.
Ryan Goodman: So the roadmap is laid out by Ketanji Brown-Jackson’s concurring opinion. And the justice at the very end of her opinion, the very final passage, basically says there’s still a path here for the Justice Department to charge Mr. Fischer under the very same statute. You just have to apply the framework. And then the question is, as Mary had set out at the beginning, under the new test, did Mr. Fischer act with the intent to impair, let’s say, the availability of records, their proper certificates, or trying to facilitate the false certificates? But in this instance, I think it would be interrupting the electoral certificates from being used in the congressional proceedings. They very well might have the case against him, and that would be the charge.
And just to add a little bit more to that, the reporting in the 24 hours since the Supreme Court opinion by CNN, New York Times, and others indicates that the Justice Department is poised to make these kinds of moves. Not necessarily Mr. Fischer’s case, though they might have that as well, but CNN, for example, said that in multiple cases, the Justice Department has provided evidence to the jury that shows the ways in which the clerks of Congress had to run with the certificates out of the building because of the incoming rioters. That provides you the kind of theory of the case that would fit the legal framework that the court just articulated.
Mary McCord: And certificates, just to be sure everyone’s checking, this was the day that Congress, the joint session, was going to literally count the electoral ballots. And those are transmitted by the states with all of the electors in each state signing and a certification that these are valid. Now, of course, we know there were also several states that sent up false certificates. That’s not the point of this particular charge here. That has been the point of separate charges and separate cases.
But those certificates is something that was a document that needed to be counted, opened by, I should say, envelopes opened by the vice president and counted on that day. And those were very much impaired by the riot. The other thing that I think is significant, you said concurrence, but just to be sure everyone’s clear, Justice Jackson’s concurrence was written separately because she agreed with the conclusion of the majority, again, a 6-3. She was one of the six who said that (c)2 does have to be tethered to (c)1 and it has to involve impairment of integrity or availability of something to be used in an official proceeding.
So she wrote separately. It’s not like a dissent writing separately and people can sort of write that off as, oh, well, that’s a dissent. This was a concurrence. And this is saying, here’s how I, who agree with the majority, see this playing out. And she says quite clearly, and these are her words, it might well be that Fischer’s conduct, as alleged here, involved the impairment or the attempted impairment of the availability or integrity of things used during the January 6 proceeding in ways other than those specified in (c)1, and if so, his prosecution can and should proceed. This remains available for the lower courts to determine on remand. So I think that’s really important.
Andrew Weissmann: Can I just say why there’s sort of an elephant in the room here? Because I think what she, although she addresses the Fischer case, and this is very factual, both what she’s saying and our earlier discussion about the broad definition of evidence that the court in the majority gives to (c)2, the looming issue is Donald Trump and his case. And maybe I can pose this to Ryan, how do you think this decision affects the (c)2 charge and the conspiracy (c)2 charge? Because these are charges that Donald Trump faces.
We’ll leave aside the immunity decision, which we talked about yesterday with our colleague Trevor Morrison. But how do you think this decision affects the Trump case? Is it go forward on the sort of the Ketanji-Brown-Jackson theory, or is there some nuance that we’re missing?
Ryan Goodman: So I think that the Jack Smith case goes forward without any real risk from Fischer. And that’s because the theory of the case for Donald Trump is the false slate of electors that he helped orchestrate across the seven different states, false documents or forgeries, as it has been charged in some of those states, to be submitted to Congress. And that is fully consistent with the majority opinion, as well as Justice Jackson’s opinion.
The majority, I think, almost goes out of its way to give as an example, quote unquote, false evidence. Creating, yes, that’s a good point. Creating false evidence that fits like nearly like a hand in glove with the false certifications. And that’s obviously a record or a document. It’s such an easy application of the majority opinion, almost of (c)1, except it goes beyond it to include falsified documents. And so I don’t think Jack Smith should lose any sleep over it.
Mary McCord: If it weren’t for the immunity opinion, but that’s another story.
Ryan Goodman: Yes. Yeah, but would not lose any sleep over Fischer. Though, that said, it’ll introduce motions. It would be incumbent upon Trump’s attorneys to make the argument in the immunity opinion. They drop an early footnote that basically invites it as well as a possibility. But I can’t imagine as long as every one of the judges sticks to the majority opinion, let’s say, that it would trouble the theory of the case of the charges against Trump or I should say, and others.
Mary McCord: Yes.
Ryan Goodman: So if any others were ever tried at the federal level, including the co-conspirators, the unindicted co-conspirators in the federal indictment, they too, for the involvement in the false electors scheme, I think it would clearly apply to them.
Andrew Weissmann: Mary, you mentioned that while this opinion is 6-3, at the outset, you noted that it is not the six and the three that one would expect because Ketanji Brown-Jackson, who is usually viewed as a, quote, unquote, “liberal justice,” joins the majority. She does write, as you said, separately. But the dissent, which is three justices, the dissent is written by Amy Coney Barrett. It’s not that she doesn’t just join it. She actually writes it.
And the one thing I will say, I think I’ve said this before, is I find her in this term, you may disagree with her on lots of things, but she comes off as thoughtful and honest and also a beautiful writer. I think I may have mentioned this just on yesterday’s episode.
Mary McCord: You mentioned it yesterday, right.
Andrew Weissmann: And you know what? I still have the same view, which is surprising that it’s 24 hours later and I haven’t changed my mind. But I wanted to get your take on sort of what she said, what her criticism of the majority is, and what you sort of made of the fact that she was in dissent here.
Mary McCord: Well, she is very pointed in her dissent. She says that, you know, the majority doesn’t dispute that the joint session qualifies as an official proceeding, that rioters delayed that proceeding, or even that Fischer’s alleged conduct was part of a successful effort to forcibly halt the certification of the election results. And she says, given all of that, the case that he can be tried for obstructing an official proceeding, and this is a quote, “seems open and shut.” So why does the court hold otherwise?
She then says the court abandoning its normal approach to statutory interpretation does textual backflips, those are her words, to find some way, any way to narrow the reach of subsection (c)2. And she dissents. And then she basically says, look, the government’s interpretation is very straightforward. Otherwise means otherwise. The plain language means in a way other than the way in (c)1, and that way should not be limited by (c)1.
Now, the majority had used these statutory interpretation canons that I would say don’t really apply here because the language is clear, which is when you have a list of things and there’s an otherwise clause at the end, sometimes that otherwise clause means, well, it does have to be tethered to that list of things. But usually in those cases, the list is one list. So let’s say —
Andrew Weissmann: Exactly.
Mary McCord: — (c)1 itself said altering, mutilating, etcetera, a document or otherwise. In one clause, I would agree maybe with the majority, but it didn’t. It is two separate sections, (c)1 and (c)2.
Andrew Weissmann: And she use great examples of that. She really takes them to task and goes through all of the textual analysis to point out why it just does not hold.
Mary McCord: Yep. So I think it’s important reading because, you know, again, we’re starting to get a feel for Justice Amy Coney Barrett, just like we did in yesterday’s immunity decision, where I thought, you know, that was a partial concurrence and a partial dissent. And she dissented on some very important points. And even on the part with which she concurred, she would have gone farther. She made it clear she would have then applied what the majority was coming up with as its test about deciding what’s official and what is unofficial. And she made it very clear that the false elector scheme in her mind is clearly on the —
Andrew Weissmann: Unofficial.
Mary McCord: — unofficial side of the line.
Andrew Weissmann: Exactly.
Mary McCord: Right. So, you know, like you said, Andrew, I think, you know, I’m really impressed with some of the things she’s doing, even when I substantively might disagree, because I think she’s clear about how she approaches sort of from a legal perspective issues and, you know, providing more guidance, frankly, than the majority. But anyway, I digress to immunity at this point.
Andrew Weissmann: Ryan. Yeah, what do you think?
Ryan Goodman: Just want to jump in with further laudatory words about Amy Coney Barrett’s work in these cases. In the oral arguments, I thought she played one of those pivotal roles.
Mary McCord: Yes.
Ryan Goodman: So in the immunity case, she is the one who gets Trump’s attorney to essentially concede that a list of allegations, including the false elector scheme, is on the private side of the line, not on the official conduct side of the line. It’s even a notable moment in the oral argument where I thought I detected Elena Kagan is asking the next question and is even taken by surprise that Amy Coney Barrett had asked Elena’s question, so that it’s a powerful, pivotal moment for how everybody even thinks of the case.
Then in the Fischer case, she’s the one that takes the lead in the oral argument about asking the question as to whether or not the statute would apply to conduct that is acting upon the certificates themselves. So —
Mary McCord: That’s right.
Ryan Goodman: — it’s not just in the writing of these opinions, but also I think as an active justice in the oral arguments, she’s become something quite impressive.
Mary McCord: Agree.
Andrew Weissmann: Yeah. So, I mean, it is something worth keeping an eye on. I think it’s too soon to say that she’s going to be the new justice suitor. But you do get the sense that she is, and again, I won’t go to say that’s definitive, but you get the sense that she is honestly wrestling with issues.
Mary McCord: Yes.
Andrew Weissmann: Again, you may disagree with where she comes out, but when you compare her to what I think is just thoroughly disingenuous outcome driven, you know, justices on the Supreme Court, she is not exhibiting any of that behavior.
Mary McCord: So bottom line is Fischer, not so much impact, very little impact. One of the things we didn’t mention that is part of the article, Ryan, that I thought was so great that you dug up is that even in cases where defendants in the January 6th attack had pleaded guilty solely to a 1512(c)2 offense, the government had included a clause in that plea agreement that said, essentially, if that charge is ever vacated, they can actually re-bring one of the offenses that they dismissed as part of the plea agreement.
So even in those cases where people pled guilty only to this, there’s still a potential remedy here. So, you know, I think at the end of the day, the impact is going to be very, very minimal. And that’s particularly the case if the government does go ahead, particularly for those who have not yet gone to trial or pleaded guilty and pursues these charges on, you know, consistent with the majority opinion.
Ryan Goodman: Yes. And I think it also the punchline in terms of the bottom line is the number 5.9 percent. So only in 5.9 percent of all January 6th cases are those individuals materially benefited from the Fischer opinion. Those are the individuals for which the only backup appears to be a misdemeanor charge. And I would think in those cases, those are the ones that we’re the least troubled about.
Mary McCord: That’s right. Absolutely.
Ryan Goodman: They’re not the seditious conspiracy by the Oath Keepers and the Proud Boys and all the folks who are attacking law enforcement officers and the like. These are the cases that I think on the outer edge on the margin. And those are the 6 percent that are affected.
Andrew Weissmann: So one thing I think that 5.9 percent figure is really useful to understand that sort of seems to be the maximum of the number of people who might only face a misdemeanor now, not a felony. But I think it’s zero percent who actually, as a result of this decision, don’t face anything.
Mary McCord: That’s right.
Andrew Weissmann: In other words, I don’t think there’s anybody who doesn’t face any crime because of this decision. In other words, this sort of idea that, oh, wait a second, everyone goes free.
Ryan Goodman: Right.
Andrew Weissmann: I think the answer is no, because there’s nobody who isn’t facing either a felony, some other felony or a misdemeanor or might still even be able to be charged with the 1512(c)2 charge that everybody falls into some charge. But there is a bucket of people who might get sort of a sentencing reduction or only have a misdemeanor. But it’s a much smaller group than the sort of widely touted beforehand that this would be as some devastating loss for the government in terms of hundreds of people going free.
Ryan Goodman: Right. And also not only the devastating loss, but it counteracts the disinformation or misinformation about government overreach, because the whole point is that it’s actually such a teeny, tiny, small percentage of the cases that are actually materially affected.
Mary McCord: Ryan, it’s been so great having you join us. You also have such a calming voice. You know, Andrew and I just get each other like riled up faster and faster and faster. Triggered.
Andrew Weissmann: Yes, I’m a really bad influence on Mary. Ryan Goodman is, you know, when you think, when people say, oh, that’s academic and sometimes people view that as a negative, Ryan Goodman is the platonic ideal of what you want somebody in the academy to be, which is completely dispassionate about facts and letting the facts govern how you should think about something. And this piece, which is said is in our show notes, is such a great example of that.
And then being really thorough and there’s a deep dive. And just final word is that I know we went over a lot of numbers, but in the piece there actually are some pie charts said that there is —
Mary McCord: Right.
Andrew Weissmann: You don’t have to just do the math. There are some easy visuals so that you can sort of see what Ryan was talking about. And I think we’re all really indebted to you and to Just Security for doing this deep dive.
Ryan Goodman: Well, thank you so much. And I did actually want to do a little bit of a shout out to my colleague Pooja Shah for creating the pie charts and the information graphics, because I think they’re so important for people’s understanding. But then to also say, to requit some of what you both said, all your listeners know this, but you both are national treasures and it’s just really a pleasure and a privilege to be in this conversation with you.
Andrew Weissmann: Well, Ryan, that’s very nice of you to say.
Mary McCord: Appreciate you, Ryan.
Andrew Weissmann: Ryan, thanks so much.
Ryan Goodman: Thank you.
Andrew Weissmann: Thanks so much for listening. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineers are Catherine Anderson and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the senior vice president for content strategy at MSNBC. Search for “Prosecuting Donald Trump” wherever you get your podcasts and follow the series.