A petition to the Supreme Court asking that the justices bar prosecutors from using what has become a favored charging tool in respect of January 6 threatens to upend hundreds of cases, including President Trump’s. 

The invitation for the high court to take up a ruling that could, en passant, reshape one of the biggest law enforcement efforts in American history raises the possibility that Mr. Trump’s fate could be decided by the Nine. Even as a constitutional contretemps over Mr. Trump’s qualification for office appears ticketed for the Supreme Court, efforts to secure intervention on his criminal charges are under way.     

The newest petition for certiorari, or Supreme Court review, comes in the case of Garrett Miller, who has pleaded guilty to 11 crimes related to his activities on January 6, 2021. It asks the justices to neuter one of those, obstruction of an official proceeding. That statute was enhanced as a provision of the Sarbanes-Oxley Act, which sought to clamp down on financial misconduct.

In addition to the Sarbanes-Oxley charge, Miller’s rap sheet includes assaulting police officers, threats to injure and kidnap — he threatened, on social media, to assassinate Representative Alexandria Ocasio-Cortez — and various species of disorderly conduct. He was sentenced to 38 months in prison after calling his own behavior “disgusting and a complete embarrassment.”

The law that has brought Miller to the high court, Sarbanes-Oxley, was passed after the accounting scandals related to WorldCom and Enron, and created the crime of “corruptly obstructing, influencing, or impeding an official proceeding, or attempting to do so.” It is attractive to prosecutors because it carries a maximum prison sentence of 20 years behind bars.

That provision, Section 1512(c), makes it a crime to “corruptly” tamper with evidence for use in an official proceeding or “otherwise” obstruct that proceeding. Federal judges have evinced skepticism, though that has not stopped Special Counsel Jack Smith from using the charge against Mr. Trump, one of the four January 6 counts faced by the 45th president.  

In charging more than 300 defendants with violating Sarbanes-Oxley, the Department of Justice is asking judges and juries to stretch to find that the effort to disrupt the certification of the electoral vote was the kind of interference contemplated by the statute. Miller warns that the “vagueness inherent in this new crime against Congress would invite — has perhaps already invited — the politicization of criminal justice.” 

A district court judge at the District of Columbia, Carl Nichols, has held that the use of Sarbanes-Oxley to prosecute January 6 rioters was a statutory bridge too far and a poor fit for what transpired on that day at the Capitol. That case was brought by three defendants, Miller among them. Another, Edward Jacob Lang, has already petitioned the Supreme Court on the same score. A third, Jacob Fischer, could soon petition for a writ. 

Judge Nichols’s decision, though, was overturned by a fractured panel of riders of the District of Columbia Circuit of the United States Court of Appeals, which upheld the charge. In dissent, Judge Gregory Katsas found that the “government’s reading makes section 1512(c) implausibly broad and unconstitutional in a significant number of its applications.” He found prosecutors’ position “hard to reconcile with the structure and history of section 1512.”

Miller points to the “national political salience of the issues raised here,” embodied in Mr. Trump being charged under the same “theory of liability that the government has filed against” him and hundreds others. He adds that “the novel crime could interfere with, or at least have a chilling effect on, the basic mechanics of government” by chilling the work of “lobbyists and policy advocates.” 

That work is constitutionally protected by the petition clause of the First Amendment, which protects the “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The District of Columbia district court has held that the grounds of the Capitol, where the January 6 riot erupted, is also where the right to protest exists in its “most pristine and classic form.” Miller’s petition acknowledges, though, that the “crimes of assault, property destruction, disorderly conduct” meant that the events of January 6 were “less than pristine.” 

At Miller’s sentencing, his attorney, Clint Borden, maintained that “although Garret is fully responsible for his individual actions that day, his actions and the actions of many others were a product of rhetoric from a cult leader that has yet to be brought to justice.” The reference is to Mr. Trump.  

If, though, the justices are persuaded by his argument that one of the charges against him is unconstitutional because “before January 6, no court had characterized political protest at the seat of government, however disorderly, as an obstruction-of-justice offense,” then hundreds of other defendants — including Mr. Trump — could well reap the rewards.