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Although the Supreme Court has not yet issued its ruling on presidential immunity (expected Monday morning), Donald Trump may no longer need it to win.
On Friday, the judges' decision in the Fischer v. The United States quashed much of the Justice Department's investigation into the former president's involvement in the January 6 Capitol riot.
Even if the court on Monday finds presidents fully responsible for being federally prosecuted after leaving office, President Biden and Attorney General Merrick Garland would do well to close the special counsel's investigation, blaming its failures on the Supreme Court and leave the question of Trump's responsibility. to the town in November.
Former President Trump and Special Counsel Jack Smith (Fake Images)
On the legal issue alone, Fischer v. United States was relatively straightforward and uncontroversial. It held that the DOJ had incorrectly read the obstruction provisions of the Sarbanes-Oxley Act of 2002 (“SOX”). SOX made it a crime for company personnel to destroy documents and tamper with witnesses in an official federal investigation.
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By a 6-3 majority, Chief Justice John Roberts held that “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.”
The DOJ cannot charge anyone simply for disrupting or delaying official proceedings; the disruption has to interfere with actual documents, evidence, or witnesses. Otherwise, the court noted, the government could charge a peaceful protester or lobbyist for attempting to influence an official proceeding.
Fischer is consistent with the court's recent line of cases limiting fraud charges to cases in which there was actual harm to a tangible property interest (e.g financial loss) and also the 2015 Yates case, where the Supreme Court ruled that the Justice Department improperly charged a fisherman, who threw a too-small fish back into the ocean, under SOX because “fish” were not “tangible objects” akin to “records” or “documents” in the context of SOX financial reform.
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But what made the case important far beyond its legal significance is that the Justice Department has used SOX as its main weapon against the January 6 rioters. He has charged more than 300 defendants, including Trump, with allegedly violating the tampering law by attempting to prevent Congress from counting the presidential electoral votes on January 6, 2021.
The Justice Department attempted to transform SOX into a general-purpose obstruction law because its 20-year maximum sentence places massive pressure on defendants to accept plea deals.
Special counsel Jack Smith followed Biden's Justice Department playbook and also charged Trump with four felonies, two of them obstruction of SOX. Fischer has ripped the heart out of his accusation.
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Smith could always try to press on, perhaps based on some bizarre theory that submitting alternative slates of electors would alter the documentary evidence. But the Justice Department has a very steep hill to climb to prove beyond a reasonable doubt that Trump himself had a corrupt state of mind or that the alternative slate scheme was truly fraudulent.
Smith's two remaining charges against Trump border on the frivolous. Trump is alleged to have committed fraud against the United States, a lawsuit typically brought against government contractors who inflate their bills or hospitals that overcharge Medicare or Medicaid.
Last year, the Supreme Court made clear that fraud must involve corrupt activity to obtain money or property; It does not apply to politicians who pursue their political interests. Whatever you think of Trump's conduct on January 6, it was not bribery for nothing or financial corruption.
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Smith's latest charge alleges that Trump violated the voting rights of all Americans by attempting to alter the election results. Not only has no limitless theory like this ever received the approval of a federal court (or the previous attorney general, for starters), but Smith's argument would arguably make the Electoral Count Act itself unconstitutional. That law, for example, allows House and Senate majorities to reject state electors.
The Justice Department should not use weak legal arguments to convict any defendant, much less a former president. Public trust in prosecutors and the criminal justice system in general is in serious decline. If Attorney General Garland wants to uphold the rule of law, he should close the special counsel's investigation.
Smith's extreme, and now repudiated, readings of the criminal law have only reinforced the perception that the Justice Department is going after Trump for partisan reasons that have everything to do with November 2024, rather than January 2021.
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If Smith truly believes Trump sought to block the peaceful transfer of power, he should charge the former president with insurrection, sedition, or both. But Smith and his superiors undermine the rule of law if they publicly accuse Trump of insurrection and instead charge him with baseless fraud, repudiated obstruction, and frivolous theories about voting rights.
After yet another Supreme Court loss, Biden would be wise to let the people judge Trump in the November election, rather than causing further damage to the law in hopes of defeating his opponent in court.
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John Shu is a legal scholar and commentator who served in the administrations of Presidents George H.W. Bush and George W. Bush.
