What DOJ should do about Trump's Jan 6 prosecution after Supreme Court's Fischer ruling
Even though the Supreme Court has yet to issue its ruling on presidential immunity (expect it on Monday morning), Donald Trump may no longer need it to win.
On Friday, the justices’ decision in Fischer v. United States squashed much of the Justice Department’s investigation into the former president’s involvement with the Jan. 6 riot at the Capitol.
Even if the court on Monday holds presidents fully liable to federal prosecution after leaving office, President Biden and Attorney General Merrick Garland would be wise to shut down the special counsel investigation, blame its failures on the Supreme Court, and leave the question of Trump’s responsibility up to the people in November.
On the legal question alone, Fischer v. United States was relatively simple and uncontroversial. It held that DOJ had improperly read the obstruction provisions of the Sarbanes-Oxley Act of 2002 ("SOX"). SOX made it a crime for company personnel to shred documents and tamper with witnesses in an official federal investigation.
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Writing for 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 proceedings of records, documents, objects, or other things used in an official proceeding, or attempted to do so."
DOJ may not charge someone for merely disrupting or delaying official proceedings; the disruption has to interfere with actual documents, evidence or witnesses. Otherwise, the court observed, the government could charge a peaceful protester or a lobbyist for attempting to influence an official proceeding.
Fischer is consistent with the court’s recent line of cases narrowing fraud charges to instances where 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 DOJ improperly charged a fisherman, who tossed a too-small fish back into the ocean, under SOX because "fish" were not "tangible objects" similar to "records" or "documents" in SOX’s financial reform context.
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But what made the case important far beyond its legal significance is that DOJ has wielded SOX as its main weapon against the Jan. 6 rioters. It has charged more than 300 defendants, including Trump, with allegedly violating the document-tampering law by seeking to prevent Congress from counting the presidential electoral votes on Jan. 6, 2021.
DOJ sought to transform SOX into a general purpose obstruction law because its 20-year maximum sentence imposes massive pressure on defendants to agree to plea bargains.
Special Counsel Jack Smith followed the Biden DOJ playbook and also indicted Trump on four felony counts, two of them SOX obstruction. Fischer has ripped the heart out of his prosecution.
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Smith could always seek to press forward, perhaps on some bizarre theory that presenting alternate slates of electors tampers with documentary evidence. But DOJ has a steep hill to climb to prove, beyond a reasonable doubt, that Trump himself had corrupt state of mind or that the alternate electors slate plan was truly fraudulent.
Smith’s remaining two charges against Trump border on the frivolous. One maintains that Trump committed fraud against the United States, a claim usually brought against government contractors who inflate their bills or hospitals that overcharge Medicare or Medicaid.
The Supreme Court made clear, as recently as last year, that fraud must involve corrupt activity to obtain money or property; it does not apply to politicians pursuing their political interests. Whatever one thinks of Trump’s conduct on Jan. 6, it did not amount to a quid-pro-quo bribe or financial corruption.
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Smith’s last charge alleges that Trump violated the voting rights of every American by attempting to alter the election results. Not only has no unbounded theory like this ever received the approval of a federal court (or past attorney general to start with), but Smith’s argument would conceivably render the Electoral Count Act itself unconstitutional. That act, for example, allows majorities of the House and Senate to reject state electors.
DOJ should not erect flimsy legal arguments to convict any defendant, let alone a former president. Public trust in prosecutors and the criminal justice system at large is in serious decline. If Attorney General Garland wants to defend the rule of law, he should shut down the special counsel investigation.
Smith’s extreme, and now repudiated, readings of criminal law have only reinforced the perception that DOJ is pursuing Trump for partisan reasons having everything to do with November 2024, rather than January 2021.
If Smith truly believes that 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 under baseless fraud, repudiated obstruction and frivolous voting rights theories.
After yet another loss before the Supreme Court, Biden would be wise to let the people judge Trump in the November election, rather than doing further damage to the law in the hopes of knocking out 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.