No less than three cases bearing on Trump’s responsibility for the Jan. 6, 2021, Capitol riot are now due for Supreme Court action in the new year. First and most explosive will be the appeal of the Colorado Supreme Court’s Tuesday ruling disqualifying Trump from the state’s presidential primary ballot for insurrection under the 14th Amendment. Second is special counsel Jack Smith’s request, filed last week, for early Supreme Court intervention in the criminal case against Trump to deny the former president’s immunity defense. Third and less remarked-on, but just as important, is an appeal from accused Jan. 6 rioters that the court agreed last Wednesday to hear. It could affect the viability of two of the four counts in Smith’s case.
The suddenness of this Jan. 6 legal storm puts the justices in an awkward position. The chief justice, in particular, could be tempted to balance the three cases against one another in a way that he thinks protects the court’s reputation. There’s a role for judicial statesmanship, and John G. Roberts Jr. has an impressive knack for outmaneuvering his critics. But the issues here are too urgent, and the political situation too volatile, to attempt a political compromise that would likely fail. The best way for the court to protect itself is to wrench the cases out of the Trump distortion field and decide each on its own merits.
Start with the Colorado decision about Trump’s eligibility for office. The post-Civil War 14th Amendment of 1868 contains a provision to disqualify officeholders who “engaged in insurrection” against the United States or gave “aid or comfort” to its enemies. After Trump’s acquittal on insurrection charges in his 2021 impeachment trial, it appeared that he could not be disqualified from office by the events of Jan. 6. That conclusion was reinforced by the absence of insurrection charges in the Justice Department’s indictment of Trump on allegations of trying to overturn the election.
But then two law professors published an article in August arguing that the 14th Amendment’s disqualification clause applied to Trump “automatically,” independent of the impeachment and criminal processes. The article swiftly supercharged activist efforts to remove Trump from the ballot, and the Colorado Supreme Court majority opinion closely tracks the law professors’ arguments. (Don’t let anyone tell you that creative academics can’t shape the political arena!)
This case should be the easiest of the three for the justices to dispose of. The 14th Amendment provides for congressional enforcement “by appropriate legislation.” An 1869 decision by Chief Justice Salmon P. Chase — President Abraham Lincoln’s former treasury secretary who was present at the 14th Amendment’s creation — said the disqualification clause needed congressional legislation to guide its implementation. Determining whether a particular officeholder meets the amendment’s criteria for disqualification is a complex inquiry requiring due process, both for the candidate’s sake and the voters’.
I’m skeptical that the Jan. 6 riot at the Capitol amounted to an “insurrection” in the constitutional sense. But the justices don’t need to wade into those waters to reverse the Colorado court. They just need to conclude that improvised state proceedings are not adequate to resolve questions of this magnitude. As Colorado Justice Carlos Samour Jr., an appointee of Democratic Gov. John Hickenlooper, wrote in dissent: “I cannot agree with the majority that the chimeric proceedings below gave President Trump process commensurate to the interest of which he has been deprived. Nor did the proceedings below protect the interest Coloradans have in voting for a candidate of their choosing.” He described the case as “an end run” around charging Trump with insurrection.
Due process is a cornerstone of political legitimacy. If government officials are going to repudiate voters’ judgment in as ostentatious a way as removing a leading candidate from the contention for office, the public needs confidence that requisite procedures were followed. That should be a politically neutral ground for the Supreme Court to reverse the Colorado court — perhaps by a wide enough margin to deter Democratic politicians from thinking about ignoring the ruling.
The second Capitol riot matter for the court involves Trump’s criminal trial — or really, its timing. A final pretrial issue that needs to be resolved before Trump is put in front of a jury is whether he enjoys presidential immunity for any of the conduct in his election-interference indictment. The trial judge said he doesn’t, and Trump has appealed. Rather than waiting for the appeals court, special counsel Smith has asked for “extraordinary” Supreme Court intervention right away to fast-track the trial.
This is where it’s easy to imagine judicial horse-trading coming in. If a majority of the Supreme Court is going to vote for Trump to remain on the ballot, then some justices might be inclined to yield to Smith’s request in the hopes of appearing “evenhanded” on the Trump question. That would send the superficially appealing message that while the court opposes the activist-led effort to take away voters’ choice of candidate in a presidential election, it sees accelerating the candidate’s prosecution as a national imperative.
This would be a dreadful trade-off. Smith is probably right, for the most part, about Trump’s lack of immunity. So let Smith prevail, as he is likely to, through the ordinary process at the U.S. Court of Appeals for the D.C. Circuit. The Supreme Court could affirm that ruling. But Smith doesn’t just want to win — he wants to win in time to complete a trial before Election Day 2024. Though he uses euphemisms such as “this term” and “immediate resolution,” the election timeline is the only plausible reason for his Supreme Court request.
The Post reported in June that leaders in Attorney General Merrick Garland’s Justice Department resisted criminally investigating Trump early in President Biden’s term. Meanwhile, pressure from Democrats built. One source told The Post that the Justice Department began to turn its investigation toward Trump “only after they were embarrassed.” Smith finally indicted Trump nearly 2 ½ years after the events of Jan. 6 despite having apparently uncovered little new information.
It’s not the Supreme Court’s job to bail out Garland for his indecision. Advocates of Trump’s prosecution say over and over that he must be treated like any other defendant, no matter his candidacy. It’s a powerful argument. But the Supreme Court doesn’t reach out to accelerate trials of ordinary defendants based on national election calendars. Doing so here in the hopes of placating Democrats would not reinforce the court’s legitimacy.
Finally, the knottiest of all three cases: the appeal from a Jan. 6 rioter charged with obstructing an official proceeding that the Supreme Court accepted last week. Trump isn’t a party to the case, Fischer v. United States, but he is also charged with obstructing (and conspiracy to obstruct) the same proceeding — Congress’s counting of electoral votes.
Congress enacted the obstruction statute, known as 1512(c), to punish evidence tampering, such as Trump’s alleged effort to delete incriminating video footage at Mar-a-Lago. But in Jan. 6 cases, prosecutors tried applying the statute in a novel way. They read it broadly to criminalize a wide range of acts that impede government proceedings, even if the defendant didn’t tamper with evidence. Prosecutors have mostly prevailed in the lower courts, but the Supreme Court’s decision to grant the case suggests at least four justices have concerns with such a broad reading of the law.
They are right to be concerned. The nature of proceedings in representative democracies is that many people try to influence them, by means fair and foul. There needs to be a boundary on the kind of influence attempts that this powerful statute encompasses. Otherwise, it is a loaded gun for enterprising prosecutors to pick up and aim at their political opponents if they try to influence government in potentially improper ways (such as by, I don’t know, taking a major candidate off the ballot?).
When the justices hear Fischer, likely in the spring, the media will be fixated on what it means for Trump. Some partisans will lobby for a reading of the statute that keeps Smith’s Trump charges alive, and other for a reading that nullifies them. But it would be best for the court if the justices resolved Fischer as if Trump didn’t exist, focusing narrowly on its application to the defendant actually in court. The country’s long-run interest is in a criminal code that vindicates due process, and this statute is vulnerable to abuse no matter what Trump’s legal or political fate.
With the exception of turning down a frivolous election appeal in 2020, the Supreme Court has mostly managed to steer clear of the fight over Trump’s legal and political survival. That reprieve will end this term.
There’s no reversing the damage to American institutions that Trump inflicted by trying to overturn the 2020 election. But the justices can avoid compounding it by adhering to the principle of due process of law, even if that sometimes means disappointing Trump’s political opponents. That’s the best way to minimize the Trump storm’s damage to the court’s legitimacy. If Trump wins the election and — as many fear — tries to abuse his power, that legitimacy will be a precious resource indeed.
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