Reading tea leaves from the oral argument on immunity and last week’s ruling on obstruction.
The Supreme Court is poised to rule Monday morning on the immunity issue that has suspended former president Donald Trump’s election-interference case for months. I expect that the Court will recognize that presidents have immunity from criminal prosecution for acts that are within the ambit of their executive authority. Ironically, this will be a favor to Biden Justice Department special counsel Jack Smith: It will leave him with a narrow but apparently strong case, based on the so-called fake-electors scheme, that could be tried in the late summer.
The impact of the immunity ruling on future presidents will be important but not earth-shattering. I believe the Court has been wrestling, since hearing argument on the case in April, with how to write a ruling that essentially codifies a constitutionally-driven norm that did not need be reduced to writing prior to the dual emergence of Trump and partisan prosecutions. The danger of having an express rule is that it could serve as an invitation to executive lawlessness – in a way that the norm, which was not an ironclad guarantee against criminal prosecution, did not. That is an unfortunate development, but it is probably a necessary one in an era of politicized indictments. First, it will limit such indictments to allegations of private misconduct (i.e., not involving official acts). Second, presidents who abuse their powers would still face impeachment, even if criminal prosecution is unlikely, if not impossible.
The impact of the immunity ruling would be to narrow Smith’s election-interference case. On that score, it will have to be considered in conjunction with Fischer v. United States, the obstruction case on which the Court ruled last Friday. Fischer invalidates the theory that the government may resort to a post-Enron scandal-obstruction law, §1512(c)(2), to prosecute schemes to use violence and intimidation to influence the outcome of an official proceeding. Instead, the law is limited to the corruption of evidence and information – importantly, including the manufacturing of false evidence and information – that is submitted in connection with an official proceeding.
Smith’s approach is never to use a flyswatter when a howitzer is ready to hand, so he may not see the silver lining here.
He and other partisan Democrats have portrayed his election-interference case as a proxy for the “incitement of insurrection” impeachment article that congressional Democrats approved after the Capitol riot. While Trump should have been impeached, convicted, and disqualified, the impeachment article Democrats adopted was ill-conceived and incompetently investigated. Smith did a thorough, competent investigation, but he lacks the evidence needed to prove incitement and insurrection – which is why he hasn’t charged them. Consequently, he sought to use an obstruction theory to prove that Trump induced a mob to descend on the Capitol to stoke the political pressure needed to influence then–Vice President Pence and congressional Republicans to discount state-certified electoral votes that had been cast for Biden.
The Supreme Court has now eviscerated that obstruction theory. But it hasn’t undermined Smith’s case. To the contrary, the Fischer Court reaffirmed that §1512(c)(2), which accounts for two of the four charges in Smith’s indictment (counts two and three), is still available to prosecute defendants who engage in evidence impairment.
Smith’s indictment, at pp. 21–27, charges in detail that former president Trump, in collusion with four unindicted co-conspirators (identified only by numbers in the indictment) – Rudy Giuliani (1), John Eastman (2), Kenneth Cheseboro (5), and (reportedly) Boris Epshteyn (6) – carried out a plan to have alternate slates of Trump electors convene to cast electoral votes, as if those votes had been lawfully certified, in seven contested states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin). Significantly, the “fake” electors (a term used by one of the Arizona lawyers involved in the scheme, see Indictment pp. 23–24) generated documents which, it is alleged, falsely described the votes they’d cast as state’s authentic electoral votes. The indictment (p. 26) elaborates that “the targeted states’ fraudulent elector certificates were mailed to the President of the Senate, the Archivist of the United States, and others.”
According to the charges, the conspirators schemed to use the alternative slates and their false certifications in an effort to influence Pence to discount the true electoral votes cast for Biden. The fake electors were also to be a pretext for Trump-supporting Republican lawmakers to object to the counting of the Biden votes that had actually been cast by electors and certified by officials in these states. The indictment alleges that Trump was well-informed and complicit in this scheme, even to the point of joining with Eastman in a meeting with Pence on January 4, 2021 (i.e. two days before the joint session of Congress), at which Trump unsuccessfully browbeat the vice president to agree to remand to the disputed states the question of which slate – Trump or Biden – should be counted (Indictment, p. 34).
As I’ve previously recounted, at oral argument of the immunity case, Justice Amy Coney Barrett wrung from Trump’s counsel, John Sauer, a concession that the fake-electors scheme, as charged, involved private behavior by Trump and his campaign – i.e., it was the political action of an office-seeker, not the official action of a president. Hence, even if the Supreme Court recognizes presidential immunity from prosecution for official acts, Trump’s campaign has acknowledged that the fake electors scheme would not be immunized.
Moreover, the scheme involves the manufacture of false documents intended to influence the outcome of the congressional proceeding, rather forcible intimidation that prevented the proceeding from happening. Ergo, even after Fischer, it remains chargeable as obstruction under §1512(c)(2).
I believe the fake-electors scheme could also sustain the conspiracy to defraud the United States (count one of the indictment), as that offense has been interpreted by the Justice Department and charged in the indictment, even though I believe that fraud theory is flawed. It seems far-fetched to me that the fake-electors scheme would support the civil-rights-conspiracy charge (count four) – although I continue to believe that charge, on the facts of this case, is unsupportable, period.
To be clear, all we have for now is the prosecutor’s version of events in the indictment. If the fake-electors scheme is as strong as it appears to be in the charging document, you would think by now, almost four years later, someone besides Trump would have been charged with it – indeed, have been convicted of it. Most of the people implicated in the scheme are lawyers, and one would expect there will be vigorous defenses, including a claim by Trump that he was relying on those lawyers. Nevertheless, prosecutors would have to like their chances, especially with Judge Chutkan presiding and a Washington, D.C., jury.
Smith’s 45-page indictment, if it were kept intact, could take eight weeks or more to try. Depending on how the Supreme Court rules on immunity, and whether it remands immunity issues back to Judge Chutkan for additional factfinding, keeping the case as intact as possible would mire Smith in more immunity litigation and potentially more pretrial appeals. There would be no chance of getting the case to trial prior to Election Day, which is Smith’s goal. (To repeat, I believe that is not just an unseemly goal, it also violates Justice Department rules. But this column is not about my feelings; it is about the likelihood of Smith forcing a trial of Trump prior to Election Day.)
By contrast, a trial of the fake electors scheme would probably take only two or three weeks once a jury was selected. And assuming the Supreme Court holds the Trump defense to its concession during oral argument that the fake-electors scheme did not involve official acts of the presidency, a prosecution centered on that scheme would not bog the case down in additional pretrial litigation and appeals.
So that’s my prediction: Once the Supreme Court rules, the fake-electors scheme will survive; it will be feasible to get the scheme to trial in a couple of months; from a prosecution standpoint, it would be a streamlined, crisper case; Smith will push to get it to trial shortly after Labor Day; and Judge Chutkan will accommodate him in that effort.