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Trump Gets Boost From Supreme Court Ahead of Immunity Ruling
(Bloomberg) -- The US Supreme Court’s Friday decision limiting how prosecutors can use an Enron-era obstruction law could give Donald Trump new fuel to fight charges that he tried to overturn the 2020 election results.
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A majority of the justices held that prosecutions under a 2002 law for obstructing an official proceeding had to involve documents or other information and evidence. It wasn’t enough, Chief Justice John Roberts wrote, to allege that a defendant broadly tried to stop a proceeding from taking place.
Although the decision is most directly about Trump supporters charged with participating in the Jan. 6, 2021, attack on the US Capitol, Trump’s criminal case looms large. Two of the four felony counts accuse him of violating the same obstruction law; one count accuses him of violating it and one accuses him of conspiring to do so.
His lawyers have a pending challenge to those counts that have been on hold while he fights with Special Counsel Jack Smith over whether he has immunity because he was president at the time.
Shortly after the court released the opinion on Friday Trump posted “BIG WIN!” on his Truth Social platform. A spokesperson for Smith’s office didn’t immediately return a request for comment.
The Supreme Court is expected to rule next week in the immunity case. Even if the justices reject Trump’s claim of absolute immunity, they could find that he’s protected against charges related to official acts and send it back to US District Judge Tanya Chutkan for another round of litigation. If Trump loses on the immunity issue, Chutkan then would review the other challenges to the indictment that had been on hold.
In an October filing, Trump’s lawyers argued that applying the obstruction law to his post-election conduct “threatens to criminalize broad swaths of ordinary political activity.”
The government defended the broader interpretation of the law, based on a federal appeals court decision in a Jan. 6 related case. That decision, however, was set aside by the Supreme Court on Friday.
But prosecutors also argued that the counts should survive under a narrower reading focused on documents and evidence because the allegations involved documents related to Congress’ certification of the election.
Justice Ketanji Brown Jackson, who joined Roberts’ majority opinion on Friday, wrote in a concurring opinion that the court had left room for prosecutors to continue to pursue the obstruction charge against Jan. 6 defendants. She wrote it was possible that a defendant’s participation in the Capitol attack “involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding.”
Congress’ certification of the election, Jackson wrote, “plainly used certain records, documents, or objects — including, among others, those relating to the electoral votes themselves.”
Jackson didn’t specifically address any implications for Trump’s case, nor did Roberts in the majority opinion or Justice Amy Coney Barrett in a dissent.
‘Creating False Evidence’
Randall Eliason, a former federal prosecutor and professor at George Washington University Law School, said he didn’t think the ruling would doom the counts in Trump’s indictment because the court held that “creating false evidence” could violate the obstruction law.
“The fake electors scheme would fall within that,” Eliason said, referring to the convening of pro-Trump electors in states that President Joe Biden won to sign false certificates declaring Trump the winner. He said the decision could affect how prosecutors tailor their presentation to a jury.
But Kermit Roosevelt, a professor at the University of Pennsylvania Carey Law School, said it might be harder for prosecutors to prove Trump had a direct hand in creating the false certificates. He said it appeared the high court was trying to tip the balance to favor Trump.
“I’m not sure that his connection is close enough,” Roosevelt said.
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