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whether Supreme Court Although the US Supreme Court has not yet issued its ruling on presidential immunity (it is expected to do so by Monday morning), it is no longer needed for Donald Trump to win.
The judges delivered their verdict on Friday. Fisher v. United States The Justice Department’s investigation into the former president’s involvement in the Jan. 6 riot at the Capitol has largely been suppressed.
Even if the Court on Monday holds presidents fully accountable for federal prosecutions after they leave office, it would be wise for President Biden and Attorney General Merrick Garland to shut down the special counsel investigation, blame its failures on the Supreme Court, and leave the question of Trump’s responsibility to the people in November.
Former President Trump and Special Counsel Jack Smith (Getty Images)
On the legal question alone, Fisher v. United States was relatively simple and uncontroversial. It held that the DOJ had misread 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 official federal investigations.
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Writing for the 6-3 majority, Chief Justice John Roberts The Court stated that “the Government must establish that the defendant caused, or attempted to cause, damage to the availability or integrity of records, documents, items, or other things intended for use in official proceedings.”
The Justice Department cannot charge a person merely for obstructing or delaying an official proceeding; obstruction would require interfering with actual documents, evidence or witnesses. Otherwise, the court said, the government could charge a peaceful protester or lobbyist for trying to influence an official proceeding.
Fisher agrees with a series of recent Court cases limiting allegations of fraud to cases where there has been actual harm to a real property interest.For example financial loss) and also in the 2015 Yates case, where the Supreme Court ruled that the DOJ improperly charged a fisherman who threw a very small fish back into the ocean, under SOX because “fish” were not “tangible objects” in the same way as “records” or “documents” in the SOX financial reform context.
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But what makes this case far more important than its legal significance is that the DOJ has used SOX as its main weapon against the January 6 rioters. Over 300 defendants were chargedTrump, among others, has been charged with allegedly violating the document-tampering law by trying to prevent Congress from counting the presidential election votes on January 6, 2021.
The DOJ sought to turn SOX into a general purpose injunction law, since its 20-year maximum sentence puts heavy pressure on defendants to agree to plea bargains.
Special Counsel Jack Smith followed the Biden DOJ playbook and charged Trump with four felonies, two of them SOX obstruction. Fisher has gone overboard with his prosecution.
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Smith can always try to press ahead, perhaps on some bizarre theory that presenting an alternate slate of electors is tampering with documentary evidence. But the DOJ has a tough hill to climb to prove, beyond a reasonable doubt, that Trump’s own mindset was corrupt or that the alternate electors’ slate plan was actually fraudulent.
Smith’s remaining two Accusations against Trump It borders on frivolous. One says Trump committed fraud against the United States, a claim typically leveled against government contractors who inflate their bills or against hospitals that overcharge Medicare or Medicaid.
The Supreme Court made clear last year that fraud must involve corrupt activity to obtain money or property; it does not apply to politicians who advance their own political interests. Whatever one may think of Trump’s conduct on January 6, it was not bribery or financial corruption of any kind.
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Smith’s final charge alleges that Trump violated the voting rights of every American by attempting to change the election results. Not only has no such unfettered theory ever been approved by a federal court (or previous attorneys general to begin with), but Smith’s argument would likely render the Electoral Count Act itself unconstitutional. For example, the act allows a majority of the House and Senate to reject a state’s electors.
The DOJ should not present weak legal arguments to convict any defendant, let alone a former president. Public trust in prosecutors and the criminal justice system is seriously eroding. If Attorney General Garland If he wants to protect the rule of law, he should stop the special counsel’s investigation.
Smith’s radical, and now discredited, study of criminal law has further reinforced the notion that the Justice Department is prosecuting Trump for partisan reasons that have something to do with November 2024 rather than January 2021.
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If Smith truly believes Trump tried to prevent the peaceful transfer of power, he should charge the former president with insurrection, treason or both. But Smith and his superiors undermine the rule of law if they publicly accuse Trump of insurrection and instead charge him under baseless fraud, unapproved obstruction and frivolous voting rights theories.
After yet another defeat at the Supreme Court, it would be wise for Biden to Let the people judge Trump He should contest the November election, rather than doing further damage to the law in the hope of defeating his opponent in court.
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Click here to read more from John Shu
John Shue is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.
