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Even though the Supreme Court has yet to rule on presidential immunity (it is due to do so on Monday morning), Donald Trump may no longer need immunity to win.
The Supreme Court’s ruling on Friday in Fisher v. United States invalidated much of the Justice Department’s investigation into the former president’s involvement in the January 6 Capitol riot.
Even if the Supreme Court finds on Monday that the president is fully liable for federal prosecution after he leaves office, President Biden and Attorney General Merrick Garland would be wise to end the special counsel’s investigation, blame its failure on the Supreme Court and leave the question of Trump’s responsibility to the public in November.
Former President Trump and Special Counsel Jack Smith (Getty Images)
On purely legal grounds, Fisher v. United States was a relatively simple and uncontroversial decision. It found that the Department of Justice had improperly interpreted the obstruction provisions of the Sarbanes-Oxley Act of 2002 (SOX), which made it a crime for company officials to destroy documents or tamper with witnesses during a formal federal investigation.
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Chief Justice John Roberts, in a 6-3 majority decision, ruled that “the government must show that a defendant impaired or attempted to impair the availability or integrity of records, documents, objects, or other things used in an official proceeding.”
The Justice Department cannot prosecute someone for merely obstructing or delaying an official proceeding. Obstruction must interfere with actual documents, evidence, or witnesses. Otherwise, the court noted, the government could prosecute peaceful protesters and lobbyists for attempting to influence an official proceeding.
Fisher is consistent with a series of recent court decisions that have limited fraud charges to cases where there has been actual damage to tangible property interests (for example And in the 2015 Yates case, the Supreme Court ruled that the Department of Justice wrongly prosecuted a fisherman for violating SOX for throwing undersized fish back into the ocean because a “fish” is not a “tangible thing” like a “record” or a “document” in the context of SOX’s financial reforms.
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But what made this case significant far beyond its legal implications was the Justice Department’s use of SOX as its primary weapon against the January 6 rioters. The Justice Department charged more than 300 defendants, including Trump, with violating document tampering laws in an attempt to disrupt Congress’ counting of the presidential electoral votes on January 6, 2021.
The Department of Justice sought to turn SOX into a general purpose interference statute, because SOX’s maximum 20-year prison sentences would put strong pressure on defendants to agree to plea deals.
Special Counsel Jack Smith followed the Biden Justice Department’s lead by charging Trump with four felony counts, including two for obstruction of justice. Fisher roundly criticized Trump’s prosecution.
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Smith could always try to make his case on the bizarre theory that replenishment of the electoral rolls amounts to document tampering, but the Justice Department would have a tough road ahead of it in proving beyond a reasonable doubt that Trump himself was of corrupt mind, or that the replenishment scheme was indeed fraudulent.
The other two charges Smith made against Trump are largely unfounded. One is that Trump defrauded the United States, a lawsuit typically filed against government contractors who inflate bills or hospitals who overcharge Medicare and Medicaid.
Just last year, the Supreme Court clarified that fraud must involve improper conduct to obtain money or property, and does not apply when a politician pursues a political advantage. Whatever one may think of Trump’s actions on January 6, it does not amount to kickback bribery or financial corruption.
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Smith’s final charge is that Trump conspired to tamper with the election results and violated the right of all Americans to vote. Not only has such an open-ended theory never been endorsed by a federal court (or any past attorney general), Smith’s argument could potentially render the entire electoral count law unconstitutional, which allows, for example, a majority of the House and Senate to reject a state’s electors.
“The Department of Justice should not convict any defendant, let alone a former President, on baseless legal arguments. Public confidence in prosecutors and the entire criminal justice system has seriously deteriorated. If Attorney General Garland wants to uphold the rule of law, he should halt the special counsel investigation.”
Smith’s extreme, now-rejected interpretation of criminal law only strengthened the perception that the Justice Department was pursuing Trump for partisan reasons relevant to November 2024, not January 2021.
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If Smith truly believes Trump tried to disrupt the peaceful transfer of power, he should indict the former president for insurrection, sedition, or both. But when Smith and his boss openly accuse Trump of insurrection, and instead charge him with baseless fraud, denied obstruction, and frivolous voting rights theories, they are undermining the rule of law.
After suffering another loss at the Supreme Court, Biden would be wise to let the American people judge Trump in the November election rather than further damage the law by trying to defeat his opponent in court.
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John Shue is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.
