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Although the Supreme Court has yet to issue a ruling on presidential immunity (it is expected Monday morning), Donald Trump may no longer need it to win.
The judge’s ruling in Fisher v. United States on Friday shattered much of the Justice Department’s investigation into the former president’s involvement in the Jan. 6 Capitol riot.
Even if a court on Monday finds the president fully responsible for federal prosecutions after leaving office, President Biden and Attorney General Merrick Garland would be wise to end the special counsel’s investigation, blame the Supreme Court for its failure and Trump’s The question of responsibility is left to him.
Former President Trump and Special Counsel Jack Smith (Getty Images)
As a matter of law alone, Fisher v. United States was relatively simple and uncontroversial. It argued that the Department of Justice misinterpreted the obstruction provisions of the Sarbanes-Oxley Act of 2002 (“SOX”). The Sarbanes-Oxley Act makes it a crime for company personnel to shred documents and tamper with witnesses in formal federal investigations.
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“The government must prove that the defendant compromised the availability or integrity of a record, document, item, or other item used in an official proceeding, or attempted to do so,” Chief Justice John Roberts said in the 6-3 majority.
The Department of Justice may not charge someone solely for disrupting or delaying an official proceeding; the disruption must interfere with actual documents, evidence, or witnesses. Otherwise, the court held, the government could accuse peaceful protesters or lobbyists of trying to influence official proceedings.
Fisher is consistent with a recent series of court cases narrowing fraud charges to instances of actual harm to tangible property interests (For example economic damages) and the 2015 Yates case, in which the Supreme Court ruled that the Department of Justice improperly charged a fisherman under SOX for throwing a too-small fish back into the sea because the “fish” was not akin to a “tangible object” SOX Financial “Records” or “documents” in the context of reform.
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But the case’s importance goes far beyond its legal implications, as the Justice Department has made SOX a primary weapon in its crackdown on the Jan. 6 rioters. It has charged more than 300 defendants, including Trump, with violating document tampering laws by allegedly trying to prevent Congress from counting the presidential electoral votes on Jan. 6, 2021.
The DOJ sought to convert SOX into a general purpose obstruction statute because its 20-year maximum sentence put intense pressure on defendants to agree to plea bargains.
Special counsel Jack Smith followed the lead of the Biden Justice Department and also indicted Trump on four felony counts, two of which were obstruction of the Sarbanes-Oxley Act. Fisher has since been released from his prosecution.
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Smith could always seek to move forward, perhaps on some bizarre theory that proposing alternate slates of electors would tamper with documentary evidence. But the Justice Department still has a long way to go before it can prove beyond a reasonable doubt that Trump himself is corrupt or that the alternate slate program is indeed fraudulent.
Smith’s remaining two accusations against Trump border on boring. Some believe Trump has committed fraud against the United States, a charge typically leveled against government contractors who inflate their bills or hospitals who overcharge Medicare or Medicaid.
The Supreme Court made it clear last year that fraud must involve corrupt activity to obtain money or property; it does not apply to politicians pursuing political gain. Whatever one thinks of Trump’s actions on January 6, it did not constitute bribery in exchange or financial corruption.
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Smith’s final allegation was that Trump violated every American’s right to vote by trying to change the results of the election. Not only has no open-ended theory like this been approved by a federal court (or by past attorneys general), but Smith’s argument could conceivably render the Electoral Count Act itself unconstitutional. For example, the bill would allow majorities in the House and Senate to overrule state electors.
The Department of Justice should not be making flimsy legal arguments to convict any defendant, let alone a former president. Public trust in prosecutors and the criminal justice system as a whole is in serious decline. If Attorney General Garland wants to uphold the rule of law, he should shut down the special counsel’s investigation.
Smith’s extreme reading of the criminal code, now denied, only reinforced the idea that the Justice Department was going after Trump for partisan reasons, and that it all had to do with November 2024, not January 2021.
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If Smith truly believes Trump is trying to prevent 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 accuse him of baseless fraud, denials of obstruction of justice and frivolous voting rights theories.
After yet another defeat in the Supreme Court, Biden would be wise to let the people judge Trump in the November election rather than further undermine the law in the hope of defeating his opponent in court.
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Click here to read more from John Shu
John Shu is a legal scholar and commentator who served in the administrations of Presidents George H.W. Bush and George W. Bush.
