The Supreme Court’s decision in Fischer v. United States rejecting the use of obstruction of legal proceedings against January 6th defendants will potentially impact hundreds of cases. For some, it may lead to dismissals or, in the cases with multiple charges, resentencings. One of those cases that will be impacted is the pending prosecution of former president Donald Trump who is facing four charges, including two obstruction counts. However, it is not clear if Special Counsel Jack Smith will yield to the decision or possibly take the dubious path laid out by Justice Ketanji Brown Jackson in her concurrence.
Smith has long tended to push the law to the breaking point to bag defendants. That was the case when his conviction of former Virginia Governor Robert F. McDonnell was unanimously reversed as overextending another law.
It is doubtful that he will go quietly into the night after the Fischer decision. In most cases, a prosecutor would go back and secure a superseding indictment in light of the loss of the obstruction claims. Those claims were central to the narrative of the government under the current indictment.
That is not Smith’s style. He may decide to push even harder for a trial before the election on the remaining counts. Smith has made the trial before the election an overriding priority throughout his appointment. He also has a very favorable and motivated judge in United States District Judge Tanya Chutkan.
He could also take a not-so-subtle hint from Jackson in her concurrence. Jackson supported the majority in finding that the obstruction provision, Section 1512(c), was enacted after the Enron case to address the destruction of documents and records.
Section 1512(c)(1) prohibits corruptly obstructing an official proceeding by altering, destroying, mutilating, or concealing a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding. However, a second provision under subsection (c)(2) allowed for charges that would “otherwise” obstruct, influence, or impede an official proceeding. The Court held that the obstruction cases under Section 1512(c)(2) must be tied to impairing the integrity or availability of evidence.
However, in a single justice concurrence, she added a way that Smith and other prosecutors might still be able to shoehorn January 6th into a Section 1512 offense:
“That official proceeding [Congress’s certification of the Electoral College vote] plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.”
Notably, no other justice joined Jackson in the concurrence. However, Smith and Chutkan could reason that it was not expressly rejected and presumably, the three justices in dissent would support the broader reading since they were willing to sign off on the ultimate extension of the obstruction of justice statute. That includes Justice Amy Coney Barrett.
However, that still leaves less than a majority and an application that runs against the grain of the opinion. Just saying that a proceeding involves “certain records” is transparently artificial and forced. Even the submission of an alternative slate of electors is not the destruction of electors certified by the secretaries of state.
The federal law allows for challenges in Congress, which Democrats previously utilized without claims of insurrections or attacks on democracy. J6 Committee Chairman Bennie Thompson (D-Miss.), voted to challenge the certification of the 2004 results of President George W. Bush’s reelection; committee member Jamie Raskin (D-Md.) sought to challenge Trump’s certification in 2016. Both did so under the very law that Trump’s congressional supporters used in 2020. And Pelosi and Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) praised the challenge organized by then-Sen. Barbara Boxer (D-Calif.) in 2004.
Those challenges under the same loose theory could have been viewed as attempting to negate or destroy certifications from the states. It would likely, in my view, result in another reversal. It is, in my view, too clever by half.
That may not concern Smith who may still want to use the obstruction counts to increase the likelihood of convictions on the other counts. In such a circumstance, the overturning of the two obstruction convictions might still leave the conviction for conspiracy to defraud the United States and conspiracy against the rights of citizens.
We will see in the coming weeks, but Smith is likely waiting for the other shoe to drop in the Trump immunity case. That could add additional complications if the case is remanded by the Court for further proceedings. There is little time for a trial before November if the district court must hold hearings on claims that statements or actions were taken by Trump as part of his office.
Chutkan sought to meet Smith’s demand for a trial before the election by converting her court into a virtual rocket docket. The cost of the fast pace was that she created little record on these issues. That might have to be done in a remand and will exhaust additional days on the rapidly shrinking calendar for Smith.
Either way, Monday will throw the final card on the table for Smith and the Court will determine if what is left in his hand. It may not deter Smith. It often seems like both bad gamblers and special counsels tend to double down on weak hands. If history is any measure, Smith is likely to bet the farm on whatever remains.
The problem is that the farm does not belong to him.
you dropped the bomb on me you dropped the bomb on me j smith must be singing this song
Anything is possible in the Twilight Zone
Uncle Joe has a surprise for Dr. Jill. It’s trade in. Joe will be ready for the next debate.
So now President Biden can order seal team six to assassinate Trump without any consequence. Or order his jailing. Interesting.
Spoken like a 3rd grader.
Is that how you would have us see you? If so, mission accomplished.
Besides, all Biden would do is say “don’t”.
However, hopefully Trump will use his immunity to have Biden shot on Jan 26th.
Waters,
When someone tells you they are a violent fascist, ready and willing to use their violent fascist ways, like political prosecution and even assassination of a political rival, believe them.
That’s how Trump sees it. According to the Supreme Court he is not wrong. Only impeachment would be a means to remove him but not prosecute him. That’s what the court made clear.
On top of which he could pardon himself for any subsequent successful prosecution.
Alas, the President is powerless in granting you a brain, Benson
Remember the civility rules when you respond. We would hate to see you violate that!
😉
Best stick to philosophy, professor pinhead
Actually, it has been argued that he could pardon himself before a “successful” prosecution.
Sux for you, pinhead
Impeachment IS prosecution, is it not? Should there be a full Congressional agreement on say treason or corruption of high order, I believe that Congress could impose sentence.
“ Impeachment IS prosecution, is it not? ”
No. Impeachment an accusation that carries no criminal penalty. Removal by the senate is all that occurs. It does not mean the president can be charged with a crime after impeachment.
The president can pardon himself from any crime except state crimes. According to Turley.
Congress has zero power to impose a sentence. That’s not their job.
So what??
It’s the law of the land, now, and will be for generations to come.
“It’s reckless, it’s dangerous, it’s irresponsible for anyone to say this was rigged just because they don’t like the verdict. Our justice system has endured for nearly 250 years, and it literally is the cornerstone of America.”
Sorry. You lose.
Wrong George, Impeachment with a full consensus for removal is the first step in prosecution. Once a sitting President is removed from office, they no longer have any powers thereof. The high crimes and misdemeanors of the impeachment are then pushed forward to the DOJ for criminal referral under law. That’s how I would believe it, Congress is the first step, they must be removed first to pursue specific illegal activities that would not fall under official acts, like bribery…
“ Wrong George, Impeachment with a full consensus for removal is the first step in prosecution. Once a sitting President is removed from office, they no longer have any powers thereof.”
That used to be the case. Not anymore. SCOTUS just ruled even former President have absolute immunity from prosecution from official acts. Impeachment only removes the president from office. He can’t be prosecuted for crimes besides bribery or treason.
He can’t be prosecuted for crimes besides bribery or treason.
Why, how ill informed can one person be? You must have missed that in your DNC email this morning.
Takes a bribe in exchange for a pardon? Immune.—Sotomayor
Amazing how you like to cherry pick and waffle between the ruling and the dissent. LMAO
So you go on about mischaracterizing the ruling because that helps you cope. Who can blame you. It’s been a VERY bad two weeks for you.
See Ford pardon of Richard Nixon.
That is a silly supposition.
There is no official act under which that would be permissible.
That’s assumed. Even if it wasn’t permissible. It wouldn’t be prosecutable. If Congress chose not to impeach. Any president could go Scot free.
“It’s reckless, it’s dangerous, it’s irresponsible for anyone to say this was rigged just because they don’t like the verdict. Our justice system has endured for nearly 250 years, and it literally is the cornerstone of America,” Biden said Friday, adding of the U.S. legal system: “We should never allow anyone to tear it down.”
—Joe Biden
I love SCOTUS rulings until I don’t—Svelaz George
Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.
Drones a US citizen without due process? Immune.
Or order his jailing. Interesting
This is the best part.
Irony and Svelaz George have a very cozy relationship.
“As recently as late last year, Mr. Biden confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments,”
https://ago.mo.gov/attorney-general-bailey-demands-doj-turn-over-documents-relating-to-prosecutions-of-president-trump/
“And while the president has never communicated his frustrations directly to Mr. Garland, he has said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.”
https://www.washingtonexaminer.com/news/329943/biden-wish-for-trump-prosecution-leaked-as-democrats-mount-pressure-campaign-on-doj/
George, the resident Constitutional Kluxxer, tried cosplaying as The Wise Latina Justice Sotomayor:
So now President Biden can order seal team six to assassinate Trump without any consequence. Or order his jailing.
If you’re going to cosplay as The Wise Latina Justice Sotomayor by repeating what she wrote – while beclowning youself claiming to be a constitutional expert… you need to get a grip on your belief that what Sotomayor wrote in her hysterical dissenting opinion somehow or other negates and reverses the majority opinion of the court.
A Constitutional Kluxxer with supposed vast knowledge of the processes of the government should realize that the majority opinion in trial decisions is authoritative – NOT the dissenting opinion of The Three Soviet Democrat Stygian Witches that you’re parroting.
So, it took the Supreme Court months to decide that lower courts didn’t determine what were official acts and what were not. Really? At least they kindly clarified that Trump is NOT immune from unofficial acts. Good thing that campaigning and calling state officials to pressure them to change the vote is not an official act.
Neither is declaring without proof that he declassified all documents or the obstruction of justice after leaving office. Lower courts can make quick decisions on what constitutes an official act. Trump will have to prove his acts were official. Merely saying so is not going to be enough.
Impossible to campaign after an election
Earth the George the dunce
How is campaigning an official act of the office of the president? Show us how it it is an official act.
You missed the point, 3rd grader.
You say he was campaigning. The election was over, therefore he could not have been campaigning, unless it was for dog catcher in Palm Beach County.
And if you say he was campaigning, which it could not have been, then he would be protected by the First Amendment.
Intifada Revolution. From the River to the Sea. Remember all that protected speech, numbnuts?
Trump was campaigning.
For what?
Campaigning: work in an organized and active way toward a particular goal, typically a political or social one.
This^^^ campaigning. Definitely in the bounds of Presidential acts.
“A political campaign is an organized effort which seeks to influence the decision making progress within a specific group. In democracies, political campaigns often refer to electoral campaigns, by which representatives are chosen or referendums are decided.”
This campaigning, Peter? Free speech.
Now they are saying we didn’t vote for Biden so much as his team and we should vote for the team again.
I wonder if the team chose the repugnant Kamala as VP for 25th Amendment protection. Got to protect the team at all costs…to us.
But I wonder who the team is?
At least now that the charade has collapsed they can fire the squad of fluffers whose job it was to make the Prez seem lifelike in public.
Young,
Looking at the “teams” record for the first term: Disaster.
I do not recall seeing Joe Biden’s “team” on the ballot.
As we all know, world leaders have known Biden was not running the presidency. It is an open secrete and an open joke and the joke is on us.
You are not voting for Joe, you are voting for his “team” that got us high inflation, two wars, emboldened our enemies, left our allies wondering who the heck is actually in charge, and is leading the demise of the US/West lead uni-polar world to a multi-polar world.
And I agree. Who is this team? We should be informed who they are, what their expertise is and are they even qualified to make a decision.
Now it all makes sense why Russia, China, Iran, the Houthis, the drug cartels, want another Biden admin. It benefits them the most.
Bingo. The Axis of Evil has behaved….like a 50+ year old white privileged politician’s son, banging women like a misogynist, including his deceased brother’s widow, video recording himself with prostitutes, crack pipes and waving pistols, selling paintings for top dollar as if they were high end art, and having no pushback from any other entity
Joseph Biden has made the United States and the world an unsafe place.
Estovir,
Additional horrifying thought, Hunter is one of the “team,” making the decisions.
Really would explain Afghanistan.
Another one for the Gipper! Sucks more than usual to be Jack Smith today. Someone needs to take him out for a glass of Hemlock, or something.
Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.
Organizes a military coup to hold onto power? Immune.
Takes a bribe in exchange for a pardon? Immune.
Drones a US citizen without due process? Immune.
Prosecutes a political rival for non crimes? Immune.
Defies Congress and the Supreme Court to spend hundreds of billions of dollars? Immune.
Fails to uphold his oath of office? Immune.
—Sotomayor says the quiet part out loud
My condolences to the Stephen Colbert puppet, who is trying bravely to hide his despair at the events of the last 2 weeks.
Keep your chin up, little one. Such a brave face as your world falls apart.
Look at the bright side, you still have your glory hole gig.
For those saying the SC immunity decision is all about covering for Trump,
it also helps cover for Biden, Obama, Bush, Clinton, Carter…
It turns out it wasnt a right wing conspiracy after all. The US is run by a small group of individuals for corrupt and selfish purposes.
oligarchy
noun
ol·i·gar·chy ˈä-lə-ˌgär-kē ˈō-
1 government by the few
2 government in which a small group exercises control especially for corrupt and selfish purposes
https://www.merriam-webster.com/dictionary/oligarchy
Biden oligarchy will decide fate
https://www.axios.com/2024/06/29/biden-oligarchy-will-decide-fate-am
Estovir,
Yep. They are in a full panic.
And the ones who could actually make sane, rational calls, are the ones who are still calling for the rest of the Democrats to be cheerleaders.
“One who spoke on the record was Joe Salazar, an elected DNC member from Colorado: “I was hoping for more of a substantive conversation instead of, ‘Hey, let’s go out there and just be cheerleaders,’ without actually addressing a very serious issue that unfolded on American television for millions of people to see,” said Salazar. “There were a number of things that could have been said in addressing the situation. But we didn’t get that. We were being gaslit.”
Top Democrats hold conference call on Biden situation, creating anger, frustration and resignation
https://justthenews.com/politics-policy/elections/top-democrats-hold-conference-call-biden-situation-creating-anger
“Reality check: @JoeBiden is the nominee of the Democratic Party, nominated by voters in primaries across the country,” Axelrod wrote on X, formerly Twitter. “Unless the @POTUS, himself, decides to quit — which he won’t — that issue is settled.”
Another way to assess their panic is the sheer number of posts by the Media Matters DNC paid trolls reflecting their desperation. They come across as demented as Biden!!!
😜
So is selling out your country as VP an official act or can Biden be prosecuted? Who mortgages their houses every 7 months for the tune of 6M? Can you say money laundering and tax evasion?
Pastor Andrew Wommack has some catchy phrases to share.
“I’m not the sharpest knife in the kitchen.” “ If you think I’m weird, well I think your weird!”
https://www.youtube.com/shorts/w0rd4CBviOM
See below as Dennis the cock sucking liar, throws a tantrum about his really bad week.
I guess he is done “eyeing little girls with bad intent” today.
He attempts another foray into prognostication, as though his last 20 predictions didn’t sour like milk in the Georgia summer sun.
Who can forget his proclamation that Trump would be spending this summer sweltering in a Georgia state penitentiary? His prophecy that “the first intelligent black woman in a court room” (his words) would have DJT in a jumpsuit that matches his skin tone. Its starting to look like Big Fat Fanny may be the one being fitted for orange attire. I hope she doesn’t wear it inside out like she did the dress she wore when she perjured herself on the stand.
Hey Denny, don’t look now, but SCOTUS just made your day again. The only question remaining is, will Jack Smith be dumb enough to try to keep 3 of the 4 charges, or will he risk delaying the proceedings more by doubling down on stupid?
We all know Dennis is a big fan of doubling down on stupid.
Left alone with big fat Fanny
She was such a naughty nanny
Heap big woman, you made a bad boy out of me
—Queen, as covered by Nathan Wade
Jonathan: The only thing you got right in your column is that Jack Smith’s case before Judge Chutkan will not be tried to a verdict before the November election. That was preordained when the SC decided to take up DJT’s appeal and the Court has slow walked the case ever since. DJT’s “immunity” claim should have been six months ago and we won’t get the decision until today–the last day of the term. That was a cold calculation by the right-wing of the Court to help DJT. In the event he gets back into the WH, DJT will have his handpicked AG dismiss the case. That will have been made possible by DJT’s allies on the SC!
As I pointed out in my earlier comment (6/30/24@4:31 pm) Fischer v. US may help some of those who were only convicted of “obstruction” But it doesn’t help DJT in Jack Smith’s case. That’s because no one can dispute that the electoral count is an “official proceeding” under Section 1512(c)(2). And no one can deny that electoral certificates are “records, documents, or other objects…”.
But you bizarrely claim “even the submission of an alternative slate of electors is not the destruction of electors certified by the secretaries of state”. That flies in the face of what the J. 6 Select Committee found. The whole purpose of the J. 6 insurrection was was to stop the electoral count and to substitute DJT’s fake electors. Does anyone doubt that had the insurrectionists gotten their hands on the Biden slate of electors they would have been destroyed and replaced them with the slate of DJT’s fake electors? Section 1512(c)(1) covers anyone who “corruptly”…”alters, destroys, mutilates, or conceals a record…”. Clearly, to substitute the fake electors was an attempt “alter” the official vote count and “destroy” the votes of millions of American voters! Your characterization of the fake elector scheme defies logic and common sense!
As we await the SC”s decision today on DJT claim of presidential “immunity” one thing is certain. Justice delayed is justice denied!
Unfounded assertion after unfounded assertion after unfounded assertion–typical McIntyre.
You must be having a lousy day, so I’ll leave it at that. Tee-hee.
Maybe you could go to the beach today and audition your finger puppets while ogling those skimpy bikinis.
Dennis left out the detail that he was imagining those bikinis on little boys
You do know that having alternative slates of electors has been used before, right. DJT didnt just make it up. So, there is precedence that this follows the Constitution. Facts matter.
It was previously employed by the Democrats if I recall.
“no one can dispute that the electoral count is an “official proceeding” under Section 1512(c)(2).” In fact, that designation can be disputed, and Prof. Turley has so written. It is the argued that the electoral count is “mininsterial” in nature, lacking the aspects of a “judicial” proceeding, i.e., presentation of evidence, deliberation, and exercise of discretion. If it is ministerial in nature, the proceeding is viewed as not protected by section 1512(c).
JT states, “The problem is that the farm does not belong to him.”
Oh my God. This is incredible.
And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).”
She has a lot of nerve and no shame for referencing the “integrity of things used” argument. This is the same person who showed Americans she had no integrity in her indefensible answer to the question of defining a woman. Ketanji Jackson is a disgrace and does no favors to black women nor minorities like me in general.
J. Michelle Childs, U.S. District Court judge from South Carolina, black and a devout Catholic, was a far better choice than Jackson. Pity Judge Childs is not on SCOTUS today instead of the “not a biologist”.
Speaking of the “integrity of things used, the people using Joseph Biden as a puppet (not in a Peter Shill / Gigi puppet sense) have zero integrity, no decency and clearly no compassion. That they allowed Joseph Biden to self-immolate in front of 51 Million CNN debate viewers and now billions of global citizens via video clips since then, is beyond cruel and unusual punishment.
If I were the DNC, prior to the debate I would have had the press and politicians claiming that Biden was “sharp as a tack”.
Estovir: The next day, covering his debate performance at a campaign fundraiser, Biden said, “But I know how to do the job…I know how to tell the TRUTH (emphasis his…)”
Rest of the world: “Then start doing it.”
Lin,
That right there.
They have been lying to us about his mental decline since 2020. Now, we all knew they were lying, but they and MSM just kept on lying and continue to do so.
Hello Upstate: True, true, and true. But his mental decline is something he cannot help, -and many of us may face this as we get older. But what bothers ME is the fact that so many of his lies/plagiarism/cheating occurred when he was NOT in mental decline/aging, and go back years starting as early as law school. Controlling forces (including media) dictate the winners and losers; the exposed and the escapees. Senility is not an excuse here.
Too much legalese for me BUT we know this DEI SC Justice who is not a biologist, is an idiot so my question is this:
Is she capable of formulating the strategy or is a group with more brainpower pulling her strings (a la Susan Rice/Obama)?
❓
More simple than that:
DEI delivered an individual that is not a biologist but is willing to make decisions based on biology. An individual that cannot interpret statistics though she references statistics and applies it incorrectly in decisions. Now, that same individual provides guidance in court decisions to political party operatives as to how to navigate legal gray zones and prolong controversial issues that are the very purpose of the SCOTUS to clarify and eliminate.
This is what DEI gets you: individuals that lack virtue and are expert in subterfuge. Still impressed with Harvard?
The legal profession can thank the likes of Smith, Weissman, Schiff, and others of their ilk who seek to create a ‘silk purse from a sow’s ear’ for gain, as the reason why it has been the butt of so many deprecating jokes for years. Unfortunately, rather than having been run out of town on a rail for same, they are rewarded for their pains with further success.
Not sure what Turley means by another reversal…
(Sorry but I may be missing something…)
As to his raising the challenges… that’s actually part of the process.
So I don’t think Jackson has an argument that would garner any attention by the rest of SCOTUS.
If Chutkan were to take Jackson’s dissent and attempt to continue that vein… it would not bode well for her.
Judges are not above the law and they could be charged w election interference. Especially if Trump wins.
-G
Trump should catch a minimum 3 year bid on the 11th.
I think Chutkan should just say you had your 80 days already while the SCOTUS finger popped their asses. She should kick things off tomorrow.
Another kangaroo court . . . .
Elvis Bug, acting out after his really bad week.
It’s ok buddy.
Gentleman Jack will get you high tonight
And take you to your special island
Gentleman Jack will get you by tonight
Just a little drink, and you’ll be smilin’
The Court’s opinion expressly states, “The problem is defining what exactly Congress left for (c)(2). Perhaps Congress sought to criminalize all obstructive acts in Section 1512(c), and having named a few examples in (c)(1), devised (c)(2) to prohibit the rest in
one go.”
—Seems to me that I learned the steps to statutory construction and interpretation include a look at “legislative intent” to secure an understanding of its intended SCOPE. The Preamble to the Sarbanes-Oxley Act, Pub.L 107-204; 116 Stat. 745, expressly states that the purpose of the bill was to “protect investors by improving the accuracy and reliability of corporate disclosures made
pursuant to securities laws.”
My rather quick perusal of the entire opinion did not see any discussion of this (legislative intent). What members of Congress were involved in creating the bill, and are they still around?
Lin, I believe the concurrence discusses legislative intent.
Daniel: Yes, thanks, I had scanned Jackson’s concurring contribution. But I do not believe that concurrence qualifies as “sum and substance” of the rationale/reliant factors behind a consequential SCOTUS decision. It’s like saying, “…And furthermore….” or, “…Moreover…” That, to me, is the quintessential understanding of a concurrence. (The majority’s justices obviously read and discussed Jackson’s contribution…)
(for those not inclined to read the tedious actual statute, here is a nice 2024 summary of its main purpose:
https://www.jdsupra.com/legalnews/a-guide-to-whistleblowing-under-the-1372542/