The Supreme Court isn't helping Smith and Chutkan put Trump on trial in early March
Nor should it
Yesterday, the Supreme Court rejected special counsel Jack Smith’s request to bypass the D.C. Circuit and decide Donald Trump’s claim that he is immune from prosecution for crimes he allegedly committed while he was president. The Court disposed of Smith’s “emergency” request without explanation in a one sentence statement. There were no dissents.
No explanation was required. There is no sound justification for bypassing the D.C. Circuit, which has scheduled oral argument in the matter for January 9.
It’s true that adhering to the normal, orderly procedure in this appeal might well delay, perhaps significantly, Trump’s trial in D.C. which is now set to begin on March 4. But that should not be the Supreme Court’s concern, particularly given that Trump has not tried to exercise his right to a speedy trial.
If Smith is so wedded to trying this case sooner rather than later, maybe he should have brought the case, which is based on events that happened nearly four years ago, sooner rather than later.
Earlier in this month, the Supreme Court issued another order that might delay Trump’s D.C. trial. It granted cert in a case raising the question of whether a law that forms the basis for at least one charge against Trump in D.C. can be used to prosecute January 6 rioters. The law in question — 18 U.S.C. § 1512(c)(2) — makes it a crime to obstruct or impede an official proceeding.
Donald Trump is not a defendant in the case the Court will hear. In fact, only one January 6 defendant is a party in that case. However, the Court’s decision could affect Trump’s case, as well as those of the hundreds of participants in the events of January 6, 2021 who have been charged or convicted under the statute in question.
Judge Chutkan, who will presided over the D.C. case against Trump, has said that the law applies equally to everyone, and that therefore the case against Trump should be handled the same way a case against an ordinary defendant would be. As I see it, the Supreme Court’s cert grant will test Chutkan’s sincerity.
Bill is our resident criminal procedure expert, so he can correct me if I’m wrong. However, my sense is that if ordinary defendants were about to be tried under a law the Supreme Court might soon say doesn’t apply to their situation, a fair-minded judge would wait until the Supreme Court rules to conduct the trial (assuming no request by the defendants for a speedy trial).
That way judicial resources might be conserved. In addition, the defendant might be spared the time, expense, and anguish of what, in effect, would be an inappropriate trial.
Trump’s case is more complicated because not all of the charges against him are based on the law being challenged in the Supreme Court. In fact, at least two of the four charges clearly are not based on that law or anything similar. They are: conspiring to defraud the United States and conspiring against the right to vote.
Thus, if Smith were to dismiss any and all charges implicated by the Supreme Court’s cert grant, there would be no question of delaying the trial until after the Court rules. But if Smith doesn’t do this (and I doubt he intends to), it seems to me that there’s a strong argument for waiting until the Court determines whether that statute applies to the riot of January 6. Surely, a trial that’s limited to real crimes is preferable to one that includes crimes not properly charged.
Will Judge Chutkan agree, or is she hellbent on going forward without not waiting until the Supreme Court rules (presumably in June)? And if she is that hellbent, why?
What about the merits of the case the Court has agreed to hear? The statute at issue, commonly known as Sarbanes-Oxley, was passed in the wake of the Enron scandal and was directed against document shredding by that company’s accountants. It applies to anyone who “corruptly — (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”
Arguably subpart (2) takes the statute well beyond document destruction and the like to encompass any obstruction, or attempt of any nature to obstruct, an official proceeding. On the other hand, arguably it should be read to encompass only forms of tampering similar to, but not captured by, subpart (1).
A D.C. Circuit panel majority took the former view. It relied on the plain meaning of the statutory language.
In dissent, Judge Greg Katsas took the latter view. He pointed out that under the expansive interpretation of the law employed by the majority, a peaceful protestor in the Senate gallery could be convicted of a felony for trespassing while exercising free speech rights. Therefore, in his view, the majority’s reading “makes section 1512(c) implausibly broad and unconstitutional in a significant number of its applications.”
Katsas agreed that the law can apply beyond the destruction of documents, but only to people who “hinder the flow of truthful evidence to a proceeding.”
This view seems sensible to me. More importantly, the grant of cert suggests that it seems sensible to at least four members of the Supreme Court.
You can read the D.C. Circuit’s opinion and the dissent here.
For an analysis of the two Supreme Court orders treated in this post, check out this discussion sponsored by the Federalist Society and led by John Yoo.
Excellent narrative and analysis. The Supreme Court could also decide subpart (2) is as broad as Smith contends, could not be narrowed by Supreme Court construction, and is therefore an overly broad criminal law unconstitutional on its face. Jim Dueholm