• The Supreme Court hears arguments today in a major case related to the January 6th Insurrection that has the potential undo some of the charges former President Donald Trump faces. The case looks at whether the Justice Department was right to charge some of the people who stormed the Capitol that day with the crime of obstructing an official proceeding. The case has the potential to upend hundreds of prosecutions tied the riot, and knock out two of the four charges Trump is facing in his federal insurrection case. Leah Litman, co-host of Crooked’s legal podcast ‘Strict Scrutiny,’ breaks down the case for us.
• And in headlines: Jury selection began in Trump’s Manhattan criminal hush-money trial, the FBI announced it’s conducting a criminal investigation into the collapse of the Francis Scott Key Bridge in Baltimore, and our favorite NCAA stars are headed to the WNBA after yesterday’s draft.

Show Notes:

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TRANSCRIPT

Josie Duffy Rice: It’s Tuesday, April 16th. I’m Josie Duffy Rice. 

Tre’vell Anderson: And I’m Tre’vell Andersen. And this is What a Day where the iPhone is still king. 

Josie Duffy Rice: I mean, Samsung took back the crown as a top selling smartphone company in the world, but that’s just one sales quarter. 

Tre’vell Anderson: Listen, the attack of the green bubbles, they’re coming for us Josie. 

Josie Duffy Rice: They are. 

Tre’vell Anderson: I don’t like it. [music break] On today’s show, the FBI is investigating the bridge collapse in Baltimore. Plus, the women’s NCAA stars we love are now on WNBA teams. 

Josie Duffy Rice: But first, the Supreme Court is scheduled to hear arguments today in a major case related to the January 6th insurrection. It’s a case that could undo some of the charges former President Donald Trump faces, depending on how the justices rule. The case involves one of the rioters, a former police officer from Pennsylvania, Joseph Fischer. The Justice Department charged Ficsher with a long list of offenses, including assaulting a police officer, unlawfully entering the Capitol grounds, and obstruction of an official proceeding. And it’s that last charge, obstruction of an official proceeding that Fischer wants the Supreme Court justices to toss out. And the stakes in this case are high. Two of the four charges Trump is facing in his federal January 6th case also deal with that same part of this law called Sarbanes-Oxley. More than 100 rioters have already been convicted and sentenced under it so far. So if the justices decide to toss out that charge for Fischer, it could upend the federal government’s push to prosecute the other Capitol rioters. 

Tre’vell Anderson: Okay, but why would storming the Capitol during the certification of a presidential election not be obstructing an official proceeding? I don’t know, a meeting of Congress seems pretty official to me and it was clear, right, that they obstructed on that day. 

Josie Duffy Rice: I remember some obstruction. That’s my memory. But I also wanted to know the answer to this question. And so I called up Leah Litman. She’s the co-host of Crooked’s legal podcast, Strict Scrutiny. I started by asking her to explain the case a little more and tell us what Fischer’s lawyers are actually trying to argue here. 

Leah Litman: The question in the case is how to interpret the statute 1512 C, which is the statute under which many January 6th participants have been prosecuted, and the statute prohibits interference with official proceedings or investigations. And the defendant in this case, as well as other defendants, have argued that this statute, which was actually part of the Sarbanes-Oxley Act, only prohibits interference with investigations that involve investigations or the collection of evidence, not just the proceedings to certify the presidential vote, like happened on January 6th. So that’s the argument in the case. And the defendant, Mr. Fischer, is arguing I can’t be prosecuted under this law because it doesn’t involve the kind of proceeding that the statute actually prohibits interfering with. And if he is correct on that argument, then that would make the charges against him disappear, but also the charges against other January 6th participants and Donald Trump, too. 

Josie Duffy Rice: Yes. We’re going to get to the Donald Trump part in just a second. But I do want to ask you, you just brought up that it you know, this law comes from this Enron scandal in the early 2000s, when people at the company shredded a bunch of documents to cover up fraud while the company was collapsing. How are prosecutors arguing that this should apply to these defendants, given that the details seem to not totally align? 

Leah Litman: Yeah. So there’s different sections of the statute. And one of the sections of the statute kind of directly deals with the kind of Enron related events that you were alluding to, so prohibits the destruction of evidence or records or things like that, which is, of course, what the Enron defendants did. But then there’s a separate section, which is the section under which the January 6th participants have been prosecuted, and that just prohibits interference with all proceedings. So there is an argument kind of based on the intent of the statute or maybe the purpose, or maybe the problem that Congress had in mind was, you know, the destruction of evidence or records. But that’s not what the words of that particular section say. And so the prosecutors have been saying, look, if you just look at the words of the statute, it prohibits interfering with any proceeding and the certification of presidential votes was a proceeding. Therefore, these January 6th participants can be prosecuted under it. So that’s kind of the government’s argument. 

Josie Duffy Rice: We haven’t heard oral argument in this case yet, so it’s a little hard to say, obviously, but where are you thinking that the justices could come down? And I guess even more specifically, the court has not always been super eager to constrain prosecutorial power or discretion. So is there a reason to think that they would be more willing to do this now that maybe they’re going to change their tune just a little bit? 

Leah Litman: I think the answer is yes, kind of for two reasons. One is that the defendant in Fischer is not just arguing that this statute can’t be applied to anyone who participated in January 6th, because it’s a sort of proceeding that the statute doesn’t cover. He argues that he himself specifically came to the Capitol after Congress had already recessed, and therefore he wasn’t actually at the Capitol when the proceeding was being interfered with. And so there is a potentially narrower theory that the court could accept in his case that would not call into question all of the January 6th prosecutions that I think is more plausible than the, you know, broader argument that he’s pressing. But on your point about the court, you know, not generally being willing to constrain prosecutorial discretion in criminal law. I think that’s absolutely true, at least when we are talking about a certain category of crimes. But this court has been very willing and eager, I think, to limit the force of criminal laws when you’re dealing with some white collar crime, when you are dealing with certain kinds of political corruption. And I think their intuitions in the political corruption case, where they look around and they say, well, you know, giving bribes or gratuities or unlimited corporate spending, that’s not corruption. That’s just how government works. And I think a part of them might look at January 6th, you know, as some Republicans have described it, which is this is a peaceful protest kind of channeling people’s concerns about the 2020 election like a legitimate form of political grievance. And so I think that that theme could lead them to be more sympathetic to the defendant in this case, less sympathetic to the government than they might be in other kinds of cases. 

Josie Duffy Rice: So Donald Trump is among the defendants charged with obstruction, but again, not for storming the Capitol. These charges stem from a plan to submit fake presidential electors to disrupt certification of the election. Sometimes I say those words out loud and I’m like hard to believe. [indistinct]

Leah Litman: That happened. 

Josie Duffy Rice: That happened. Yeah. So if you could first sort of refresh listeners memory on those charges, and then you said earlier that this could affect his charges. What could be affected here? And could any of the obstruction charges that he faces still stand? 

Leah Litman: Yes. So he was charged with multiple crimes in the January 6th case out of D.C., and some of the charges pertain to interference with an official proceeding and conspiracy to interfere with an official proceeding. Those are the charges that are related to the Fischer case. So if the Supreme Court says this statute just does not apply to proceedings of the kind that Congress was engaged in on January 6th, then those two charges would disappear, but that would leave in place some of the other charges. So he was also charged with violating a reconstruction era law, you know, that prohibits interference with the civil rights of persons, you know, because he conspired to basically throw out lawfully cast votes. That is the theory underlying that charge. And so those charges would not go away, you know, no matter what the court does in the Fischer case, they could go away if the court says he’s immune, but they’re not going to be affected by the Fischer case. 

Josie Duffy Rice: So changing [?] just a little bit. Supreme Court Justice Clarence Thomas notably did not show up for work on Monday. Who among us has not wanted to attend work on a Monday? But it is much more notable when he does it. He was not present at oral arguments. The court has offered no explanation. We know he’s had some health issues in the recent past. He was hospitalized with an infection two years ago. What do you think the significance is of an unexplained absence like this on the court? 

Leah Litman: The significance, who knows? I think it underscores the utter lack of transparency that the Supreme Court has with respect to its members. You know, they have not provided a reason about why he was absent, for all we know maybe he just wanted to watch coverage of, you know, Trump’s jury selection, you know, at home with Ginni. Or it could be that he’s having health issues. Right. And that seems important to let people know. Again, given how much political power, you know, these justices have, and the prospect that this presidential election might mean, you know, whoever wins the 2024 election has the potential to replace one justice, two justice, three justices. Who knows? 

Josie Duffy Rice: Okay, so finally, the Supreme Court’s conservative majority yesterday allowed Idaho to enforce a ban on gender affirming care for trans teens. Can you tell us a little bit more about this ruling? 

Leah Litman: Yeah, so it is, I think, a really disturbing and depressing ruling, because it’s a really strong and scary signal about what the Supreme Court is ultimately going to say about whether these laws are constitutional. And given the just spate of anti-trans legislation, anti-trans hysteria, it’s just a real gut punch. Um. That they weighed in like this. 

Josie Duffy Rice: Do you see this going basically like in the Dobbs direction? Like where not, states can do what they want, but there’s no right to this? 

Leah Litman: Yes. I mean, I think this issue will make its way to the court on the regular docket within the next year or two at the most. And they will absolutely say this doesn’t involve a suspect classification under the Equal Protection clause. To the extent they even say this involves like a discrete group of people, I think there’s a non-zero chance, like they will treat this as just a ban on conduct and not status. And they’ll just say like, yep, this doesn’t have anything to do with trans people. It’s just like banning a particular form of medical care for minors. 

Josie Duffy Rice: And that was my conversation with Leah Litman. She’s the co-host of Crooked’s legal podcast, Strict Scrutiny. The justices likely won’t rule on this case until June, but we will keep an eye on it. And that is the latest for now. We’ll be back after some ads. [music break]

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Tre’vell Anderson: Let’s get to some headlines. 

[sung] Headlines. 

Tre’vell Anderson: Let’s start with a recap of day one of former President Donald Trump’s hush money trial in Manhattan. Yesterday, jury selection began in the first criminal trial of a former president. But the court adjourned without selecting any jurors. The judge presiding over the case, Justice Juan Merchan, barred both legal teams from asking potential jurors who they planned to vote for in November, who they voted for in the past, or what political party they’re registered with. But even with those guardrails in place, dozens of people were dismissed. Meanwhile, Trump’s lawyers asked Merchan if the former president could be excused from court next week to attend not a rally, but his Supreme Court case. This is the case related to claims of presidential immunity. Merchan said no. He said that Trump will be issued an arrest warrant if he ever misses court without a reason. But just because Trump is attending these court dates doesn’t mean he’ll be paying attention. According to many people who were in the courtroom, the former president appeared to be falling asleep during Monday’s proceedings. Here’s New York Times journalist Maggie Haberman describing what she saw on CNN. 

[clip of Maggie Haberman] You know, repeatedly his his head would would fall down. His jaw kept falling on his chest and his mouth kept going slack. Sometimes people do fall asleep during court proceedings, but it’s notable given the intensity of this morning. And a lot of what was being argued.

Tre’vell Anderson: Jury selection continues today. 

Josie Duffy Rice: Presidents, they’re just like us. You know. I wouldn’t fall asleep in court. [laughter] I don’t think. 

Tre’vell Anderson: You’re not supposed to do that. 

Josie Duffy Rice: I’m feeling like he’s me in church in like fourth grade. You know?

Tre’vell Anderson: [laugh] Except this ain’t church. Okay? 

Josie Duffy Rice: This is not church. The stakes are the earthly stakes are higher. 

Tre’vell Anderson: There you go. 

Josie Duffy Rice: The FBI announced Monday that the agency is conducting a criminal investigation into whether federal laws were broken in the lead up to the Francis Scott Key Bridge collapse in Baltimore. This comes three weeks after a large cargo ship lost power and crashed into the bridge, killing six construction workers. According to a spokesperson for the agency on Monday, FBI agents were on board the Dali, the ship that crashed into the bridge, conducting quote, “court authorized law enforcement activity.” The FBI didn’t share any details about the visit, but a source familiar with the matter told The Associated Press that there were warning signs that the Dali had a low power supply that the crew was aware of ahead of the crash. This is significant because the National Transportation Safety Boards investigation is also focused on the Dali’s power system. 

Tre’vell Anderson: And the planet continues to get warmer, according to a new report released Monday the rising temperatures are endangering coral reefs around the globe. More than half of ocean waters with coral reefs have faced high enough heat to cause bleaching, which is when the coral expels its vital algae and begins to starve. This leaves the sea creatures more vulnerable to diseases. The report came from the National Oceanic and Atmospheric Administration, which said this is the fourth global coral bleaching event, and it’s on track to be the largest mass bleaching event on record. Coral reefs are essential species. They’re home to some of the most diverse ecosystems on Earth. They also help protect coastlines from storms and erosion. So the healthier the coral, the healthier our ecosystem. 

Josie Duffy Rice: Federal officials finalized regulations on Monday for the Pregnancy Workers Fairness Act. The legislation requires private and public sector employers with 15 or more employees to make, quote, “reasonable accommodations related to pregnancy, childbirth, and other related medical conditions.” The bill passed with bipartisan support in Congress, clearing the way for the Equal Employment Opportunity Commission to nail down the specifics. But conservatives, of course, were outraged by the federal agencies initial draft, which included allowances for employees to get an abortion and recover from it. The commission didn’t budge, leaving them in the final draft that dropped. And to be clear, the rules do not require employers or their health plans to cover the cost of an abortion. It just requires bosses to grant unpaid time off. The new rules go into effect in June. 

Tre’vell Anderson: And finally, the excitement of the NCAA’s Women’s March Madness tournament carried over to the 2024 WNBA draft on Monday night. And as expected. 

[clip of unspecified WNBA draft speaker] With the first pick in the 2024 WNBA Draft, the Indiana Fever select Caitlin Clark, University of Iowa. 

Tre’vell Anderson: The second draft pick was none other than Stanford’s Cameron Brink, who will join the Los Angeles Sparks. And the Chicago Sky selected Kamila Cardozo, the NCAA’s most Outstanding Player this year, as well as LSU’s Angel Reese. Cardoso helped bring South Carolina an undefeated season, including the 2024 championship title. And Angel Reese is just, you know, that diva who you all should know. This is only the second year that the WNBA draft had an audience in attendance. A big congratulations for all of the newly minted pros. We can’t wait to tune in and keep cheering all the ladies on when the season starts next month. Josie, I think I have to like, buy some tickets or something to go support. You know?

Josie Duffy Rice: I agree, if it wasn’t tax week I would agree. Try me again next week. But I’m in. I’m in. 

Tre’vell Anderson: And those are the headlines. [music break]

Josie Duffy Rice: That is all for today. If you like the show, make sure you subscribe, leave a review, save a sea creature and tell your friends to listen. 

Tre’vell Anderson: And if you are into reading and not just balls and strikes like me, What a Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Tre’vell Anderson. 

Josie Duffy Rice: I’m Josie Duffy Rice. 

[spoken together] And let’s all go to a WNBA game. 

Josie Duffy Rice: I love this idea because as you know, I’m trying to make my daughter a WNBA star. She’s very close. She’s three years old. 

Tre’vell Anderson: I hope that works out for you. 

Josie Duffy Rice: Me too. 

Tre’vell Anderson: I really hope that works out for you. 

Josie Duffy Rice: Me too. She’s three years old and I have years to perfect my plan. [laughter] [music break]

Tre’vell Anderson: What a Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our associate producers are Raven Yamamoto and Natalie Bettendorf. We had production help today from Michell Eloy, Greg Walters and Julia Claire. And our showrunner is Leo Duran. Adriene Hill is our executive producer. Our theme music is by Colin Gilliard and Kashaka. 

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