Three Big Blows

July 02, 2024/ Francis Menton @ Manhattan Contrarian

In the 235 or so years since our Republic was founded, until now, no ex-President has ever been prosecuted for allegedly criminal acts committed while in office. This has been a political norm of great consequence. Any such prosecution of an ex-President cannot avoid being inherently problematical, inevitably bringing to a head the conflict between, on the one hand, constraining the President in the exercise of his constitutional duties and, on the other hand, declaring him “above the law.” By far preferable would be for this conflict never to arise, and for the applicable legal rules never to get defined and to remain ambiguous.

So for all those 235 years, our predecessors in the government, whatever their political differences and contentious disputes, have largely refrained from the temptation to use the criminal justice system to bring down political adversaries, and entirely so in the case of ex-Presidents. That political norm came to an abrupt end with the massive “lawfare” campaign initiated during the past two years by Democratic Party prosecutors in multiple jurisdictions against ex-President (and current candidate) Trump.

You might think that people abrogating a political norm like this, so central to the proper functioning of the Republic, would only do so in the face of the most clear-cut circumstances of obvious and significant statutory violations, crying out for criminal redress. But of course that is not the MO of our current garbage political powers-that-be. Instead, we see broadly-worded criminal statutes that would never be so used against anyone else, twisted out of context in the effort to take down a hated political foe. Now, the Supreme Court has been forced to rule on several issues in these cases, and has come out in unsurprising ways.

During the past week, the lawfare campaign against Trump suffered three major blows from Supreme Court decisions. The first of those came in a decision called Fischer v. United States, issued on June 28, and the other two in Trump v. United States, issued yesterday (July 1).

Fischer v. United States involved a defendant who attended the protest at the Capitol on January 6, 2021, and who ended up entering the building. He was prosecuted under 18 U.S.C. Section 1512(c)(2), for “otherwise obstruct[ing], influenc[ing] or imped[ing] any official proceeding.” The feds prosecuted many January 6 protestors under 1512(c)(2), particularly because the charge came with penalties that were extraordinarily high compared to the nature of the wrongdoing (up to 20 years in prison). The language of 1512(c)(2) may seem at first blush to be plausibly applicable to the events of January 6; but there is a statutory construction issue in that Section 1512(c)(2) follows immediately after Section 1512(c)(1), which deals only with someone who “alters, destroys, mutilates, or conceals a record, document, or other object.” The Supreme Court held that Section 1512(c)(2) must be read in the context of Section 1512(c)(1), and only used in circumstances where 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. . . .”

Trump was not a party in Fischer, but it turns out that in special prosecutor Jack Smith’s D.C. prosecution of Trump over the events of January 6, one of the four counts of the indictment is for alleged violations of Section 1512(c)(2). And that count does not involve anything about impairing the availability of records, documents or objects for an official proceeding. Moreover, that count is very much the heart of the indictment. 

The other three counts of the indictment are even more problematical: 

1. Count 1 alleges that the January 6 events constituted a “conspiracy to defraud the United States” under 18 U.S.C. Section 371; 
2. Count 2 alleges that the alleged violation of Section 1512(c)(2) inherently also violated Section 1512(k); and 
3. Count 4 alleges a supposed “conspiracy to suppress exercise of rights,” under 18 U.S.C. Section 241. In short, beyond 1512(c)(2), it’s novel theories under vague statutes that would never be used in a similar way against anyone else.

Trump v. United States is mainly about the issue of presidential immunity from prosecution. As you have likely already read, the case deals a second major blow to the lawfare campaign by finding that the President has a broad swath of immunity for certain acts taken while in office: absolute immunity from criminal prosecution “for actions within his conclusive and preclusive constitutional authority,” and presumptive immunity from prosecution for “all his official acts.”

That leaves what could be a large area of acts not taken in the President’s official capacity. The line may not be easy to draw. But the case discusses certain of the factual allegations of the indictment, and specifically directs that Trump’s interactions with members of the Justice Department to try to get them to take certain actions are clearly within the category of “official acts.” Those interactions form a significant part of the indictment.

The case now goes back to the District Court to try to draw the lines set by the Supremes among the various acts alleged in the indictment. If the case should last that long, given the hostility of the District Judge and the D.C. Circuit to Trump, I would not be surprised to see the Supreme Court weigh in again on these issues.

The Fani Willis prosecution in Georgia is also deeply impacted by the Supreme Court’s immunity ruling. Here is a copy of the indictment in that case. There are some 41 counts. The large majority appear to involve some aspect or another of official acts of the President.

The third major blow to the lawfare campaign is in Justice Thomas’s concurrence in Trump. Thomas questions the entire basis of Jack Smith’s standing to act as a prosecutor:

In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. . . . If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.

Justice Thomas’s question impacts both of Jack Smith’s prosecutions, the one in D.C. over the events of January 6, and also the classified documents trial in Florida. To date, the Justice Department and mainstream press commentators have pooh-poohed this issue; but now, with Thomas’s opinion, both District Judges will have to take it seriously.

With these three major blows, it is very hard to see how any of these cases should proceed further. They should all be dropped. But I can confidently predict that none of them will be. In their zeal, the prosecutors will soldier on, the Republic be damned.