United States v. Trump: January 6th and Trump Prosecutions Face a Major SCOTUS Hurdle

SCOTUS granted Cert in Fischer v. United States. The challenge of a January 6th defendant whose charges were dismissed by Judge Nichols of the DC District Court. With oral argument in April and a decision in June the court will decide if the same statute used to charge Trump can be applied to the Capitol "insurrection". Unfortunately for Jack Smith a long list of precedent stands in support of Trump and Fischer.

For a more in-depth analysis of all of these issues please visit my blog:
https://ronaldwchapman.com/blog-database

If you like what you are hearing and would love an in-depth case by case analysis of some of our country's biggest cases: Enron, Oklahoma City, the Rosenberg trial please consider purchasing my book: https://www.amazon.com/Fight-Feds-Unraveling-Criminal-Investigations/dp/B09PW14BXL

Transcript

 I'm seeing the commentators get on the air to discuss the issue and most of them lack the Supreme Court knowledge or experience and really don't have a clue what's going on. So, I'm chomping at the bit to get on the air and at least talk about it a little bit. Let's, let's lay the groundwork here.

First, Jack Smith decided not to charge Donald Trump with Insurrection. Okay. He charged him with a Enron era statute the Sarbanes Oxley Act and a portion of that statute relates to obstruction of an official proceeding. That's, that's the, the main charge that Jack Smith elected to pursue. It's also the same charge that Jack Smith and other prosecutors levied against a lot of the January 6th protesters, rioters people who attacked the Capitol, however you want to call it.

That's the charge that's been used. Now the Supreme court has the opportunity to hear any case or controversy. Really that it wants to, but normally you have to appeal up, appeal up to it. Right now, Trump's immunity case is sitting before the DC circuit ready for oral argument and ultimately an opinion.

Jack Smith doesn't want that. So he goes directly to the Supreme Court. Why? Because he desperately wants Donald Trump's case to be resolved before the election. And that's especially true given that Donald Trump. Is gaining steam. It looks like he's up in New Hampshire. I think he's got a pretty smackdown lead in Iowa.

He's leading and Jack Smith can't risk, can't risk Donald Trump winning the primary and his political prosecution now being one against the lead candidate. The Department of Justice, controlled by the executive, Joe Biden, running against a person he is also prosecuting.  You want to talk about election interference, folks?

That's the definition of it. That's something that Jack Smith can't have. So he wants his trial now. What he really should do is let the process play out and have the trial when The trial is going to happen after discovery is reviewed and motions are filed and appeals are heard. Have the trial when the trial should be had.

That's what we do with most other people in the United States of America. Now, of course, Jack Smith can't run to the Supreme Court and say, Hey, I want to speed this up so we can have this trial. Everybody knows that's exactly what he wants to do, but he's not going to say that. So instead, what he does  As he files a petition before the Supreme Court and says you need to hear this in an expedited fashion.

Why? His argument is that if somebody's committed insurrection,  which he didn't charge,  interestingly,  if somebody's committed insurrection or if they've engaged in this obstruction of an official proceeding, they shouldn't be able to run for the office. So we need to have the trial to figure this out right now before he runs For office again that that is a really interesting theory if the prosecution would have been launched a long time ago And there was enough time to actually have a full hearing on these issues before the election But unfortunately Jack Smith decided to time his indictment and he cut it So what's going on at the court level right now?

Well, here's the inside scoop. And I don't think that anybody else is talking about this, and this is really important. Here's the inside scoop on what's going on.  There's a guy named Fisher, January 6th defendant.  Fisher was there, he was charged with assaulting police officers, and I don't really know too much about Fisher's conduct.

The only thing I will say is that he was charged with that same Enron era statute. Sarbanes Oxley Act obstruction of an official proceeding that Donald Trump was charged with. Now, the interesting thing about Fisher's case is that Fisher filed a motion to dismiss. On these legal grounds. Now, I wouldn't be surprised if Trump's legal team found a sympathetic defendant, somebody like Fisher, and, and had this motion filed because Judge Nichols, if any judge was going to do it, Judge Nichols was going to be the one to dismiss.

Relatively pragmatic judge, textualist sticks close to the law. I mean, he's the right one you want. So, so Fisher files this motion to dismiss. And here's what he argues. It's very similar to something that was argued in the United States versus Yates, Yates versus United States when it came to the Supreme court.

And he said, listen,  this, this statute is really designed to prevent destruction of official records, evidence documents. Things that are to be used in evidence during an official investigation. This statute is not designed to be used as a garden variety obstruction of justice statute to criminalize any conduct that the government believes is obstructionist, right?

If, if you feel like the statute does that, then anybody who stands up with a sign while Congress is in the middle of a hearing could be charged with obstruction of official proceeding, a felony. And subject to all of the criminal penalties. No, nobody wants that. Nobody wants to interpret statutes that way.

Unless you're Jack Smith and you're trying to expand those statutes and don't actually want to charge people with, with insurrection. So, Judge Nichols hears it and he says, You know what, yeah, I'm dismissing that charge because this is an expansion of that statute beyond what Congress intended. So the case goes up to the D.

C. Circuit. D. C. Circuit, in a two to one opinion.  I'm sorry. Yeah, it was actually I think two to one opinion determined that no, this statute can be used in that way, but it was like the weakest opinion I've, I've ever heard. This was the Fisher case. So Fisher appeals to the Supreme court and the Supreme court grants certiorari  on.

That issue and they just recently did it December 13th, 2023 Supreme Court says yes, we will take the case. It's likely to be argued in April and Then likely decided in June. Why am I bringing up this Fisher case? Here's the important thing  the Supreme Court already has the Fisher case  and they get to decide  Through the Fisher case whether or not Trump can be charged  With an obstruction of an official proceeding and if they decide the Fisher case in a way  that favors Trump and all of the other January 6th defendants,  then they're essentially saying this Fisher guy.

We don't believe that the facts met the charge here. And so they face very minimal public scrutiny because we're just dealing with one defendant, but the collateral consequences of that. Or that Trump gets the benefit of this decision. 500 other January 6th protesters get the benefit of this decision.

And when it's all said and done, Jack Smith's prosecution has to be put on hold until June for this case to be decided.  Because the Supreme Court just rejected His Supreme Court challenge his efforts to get before the Supreme Court before June So trial has to wait until at least after June and if it's decided in Donald Trump's favor Then Jack Smith really doesn't have much of a case at all, which means the Supreme Court  Played a pretty slippery move  They have another case.

They're gonna take that case. They're not going to take the Trump case So people don't get outraged at the court And then they get to make the decision that they want to make, and then the consequences to Donald Trump's case are the consequences.  My best guess is that Donald Trump will run.  May or may not get the nomination.

Who knows? Nikki Haley seems to be gaining some steam. We'll see what happens. But at the end of the day, I don't believe that a trial 6th before the election. I've been saying it all along.  There will be no trials before the election. I do not believe Georgia will be able to get a trial off the ground before the election.

I don't believe that Judge Cannon has any intention of getting a trial off the ground.  I, I don't know what's going on with Alvin Bragg's prosecution, but that thing is so full of holes, I don't even know that it will make it to trial. Each of these cases have the option of bouncing around before appellate courts because of the stakes,  just because of the stakes before they ever get to trial, and it doesn't make sense to hail Donald Trump in front of a jury while he's gaining steam as the nominee, put this stuff on hold, and potentially, Deal with it later.

Listen, whether you support the guy or not. I think that one thing is abundantly clear We don't want prosecutors muddling in the choices that the American public Should be able to make with respect to who their next president is Not to mention the fact that could you imagine if he faces trial and is in and is convicted and is barred from holding Office but a majority of the American public actually want him in office  That's going to lead to a lot of disenfranchised voters and not something we want.

If he's gonna lose, let him lose it on his own. If he's gonna win, let him win on his own.  But the reality is, let's hold these prosecutions off until later, so they can be fully and fairly decided. Fisher is the case to watch. Fisher versus United States. Oral arguments in April. Likely a decision handed down until June.

Judge Chutkan's trial is not going to occur. Pending cert on this very important Supreme Court issue highlighted in Fisher. Everybody in the D. C. legal circuits is aware of this move and knows exactly what's happening. No matter how many times Jack Smith asks the Supreme Court to step in and try to resolve the immunity issue, they are not going to.

Trump's case will be on hold.  And we're hopefully  going to have a fair election. Now. I say hopefully. We've still got this Colorado ballot issue to discuss and since that came up, we might as well get into it. So, here's the lay of the land there. Colorado elected to take.  Donald Trump off of the ballot.

And here's the unique thing that that Colorado decided to do that nobody else did. Michigan didn't do this. Arizona didn't do this. No other states did this. Colorado decided that it would have its own five day hearing to determine if Donald Trump should be on the ballot. The reality is, is that if you really want to talk about the 14th Amendment and the quote unquote insurrection clause, then you have to determine that somebody has committed an insurrection or been involved in insurrection.

So how do we determine that? Usually, the 5th Amendment tells us this, there's something called due process of law. Every American is entitled, if you want to take some rights and benefits away from them, they're entitled to due process of law. And what that means is varying. If there are criminal consequences, we have rules for that.

If there are civil consequences, we have rules for that. Administrative consequences, we have rules for that too. But what rules are in place to determine if somebody's received due process? To determine if they have committed insurrection well insurrection is a criminal offense And so it only makes sense  that we would look at the criminal laws for due process To determine if somebody has committed insurrection Donald Trump has not been charged with insurrection He's accused of being involved in one, but he's not been convicted of insurrection.

And so despite that fact Colorado said well, let's have our own five day hearing to determine  If Donald Trump is engaged in insurrection, oh, okay. Well, what's that hearing look like? Is Donald Trump there? Are we going to call all the January 6th witnesses? Has a discovery been produced? Have motions been able to be filed?

Is this hearing going to be in front of a jury? Or is it going to be in front of a judge? Are we able to cross examine people and use the rules of evidence to introduce exhibits? Are we able to give Somebody all of the accoutrement of a federal criminal trial in this Colorado five day hearing before determining whether somebody should be taken off the ballot.

No, absolutely not. This hearing essentially consisted of lots of argument and introduction of the January 6th report. The January 6th report certainly was a hearing where there  Witnesses were cross examined and whatnot. But the one very interesting thing about this is that Donald Trump already went through a hearing to determine whether or not he caused insurrection.

That was his impeachment trial. And during his impeachment trial, Congress determined  that he could not be convicted of it. I'm not going to say that he didn't do it. That's not what Congress determined. They determined that he couldn't be convicted from an impeachment standpoint on it.  Alright, so what does that mean? 

We have Congress who has resolved this political question. Should Donald Trump be impeached for insurrection because he's violated his oath of office? They say no. We have Colorado who says well, we need to determine if he's done this so we can determine if he's on the ballot and they have their own five day trial and they say yes, but they say yes in a three to two, I believe it was, opinion, which essentially means that one judge got to determine if Donald Trump should stay on the ballot, but regardless, the due process that is sufficient for removing somebody from the ballot really wasn't followed.

In Colorado, not to mention the fact  that states don't generally get to decide federal political questions. Alright, that's really important to remember. The federal government gets to decide what the federal government wants to do. There's something called the Supremacy Clause. States don't generally get to tell the federal government what to do.

Alright, it just doesn't flow that way.  sO,  the reality is Colorado doesn't offer sufficient due process. They come up with this hearing, they decide it, and this case is on a fast track to the Supreme Court. All right. Well, what is the Supreme Court gonna do?  And this is what I talked about on NewsNation, I think the day it happened. 

Gorsuch, Justice Gorsuch, is the 10th Circuit judge. What that means is he oversees the Tenth Circuit. He's the Supreme Court justice  that is to oversee  the Tenth Circuit. And Justice Gorsuch has the ability to rule on motions for a stay.  If somebody wants to stay a case, he can rule on those motions. One of the first games that's played in court is a timing game.

Should this issue be stayed? Should it be enjoined? Should it be allowed to continue? We play this timing game,  and that's what's going to happen. So, we have a few important parts of this timeline. January 4th is when Colorado has to print its ballots. And it needs to know whether or not Donald Trump will be on it.

This order has been stayed until like January 3rd, the day before.  Unless the Supreme Court grants a further stay, so Trump will go to the Supreme Court and the first thing he's going to do, I guarantee you, the first thing he will do, is say, hey, SCOTUS give me some more time, more, more time than January 3rd, because we need to fully brief this issue, it's very important, it has implications for the rest of the country for basically forever, if you rule that a state can just do whatever it wants on a ballot. 

And I believe Justice Gorsuch has the ability on his own to say, yes, I will extend this past January 3rd, 4th, whatever, forcing Colorado to essentially print ballots with Donald Trump's name on it. Gorsuch alone has the power to do that. Okay, that's, that's a really interesting point.  Now,  what he also has the power to do is stay that for even longer.

He could stay this until You know, the election or at least until cert is filed and the case is ultimately heard. We don't know exactly when and if the Supreme Court would grant cert on it, but this can be stayed for quite a, quite a long time. The other thing that Gorsuch can do is he can flip it to the entire court so that they can vote.

And I believe it takes five votes from there to issue a stay if he doesn't want to make the decision on his own. So number one, he could do it on his own.  But he doesn't have to. He can flip it to the entire court  and the court makes a decision. Why would he do that? Well, justices have a lot of respect for each other.

And they would hope that if something came up through another justices circuit, that the other justices would give them some respect and allow them to weigh in on very important issues. And Justice Gorsuch has a lot of candor and he is well respected.  He kind of keeps his powder dry when we think about issues like this, and he is likely to go to the rest of the court and say, Hey, I may want y'all to make this decision if he can be sure that it's not going to be an overly politicized decision.

Okay. Now, I think he has the votes. If he flips it to the entire court he has Thomas, I believe he has Roberts. He has Barrett. He has. Kavanaugh, he obviously has his own vote. And so even if you go along conservative party lines, I think that Justice Gorsuch has enough votes to continue the stay. So stay will likely be continued. 

Now once the stay is continued, the Supreme Court may still have to decide this.  But given this case was really only about the ballot, you could, you could argue that the case is moot if it's been decided if it's been stayed until after.  The ballots were printed. It could potentially be moot and so that's one avenue.

The Supreme Court likes to get out of cases just like they may do with this Fisher issue that I talked about earlier. So the real question is, is this case going to be moot? Can it be heard after ballots are printed? Well, there's still a potential controversy related to the overall general election. And whether or not Donald Trump is qualified, and there's likely a chance that other states will kind of dogpile on top of the Colorado issue.

And so the justices may want to make some sort of declaration about the overall ballot, and I expect that they will. So what we might see. Is before the election full briefing and argument and a decision on whether or not Trump can be on the ballot if he's the party's nominee. Now this could go a few different ways, but I think, you know, speaking  frankly here and really not on a legal basis, primary races are  not, not elections per se.

They're, they're, they're really for the nomination for the party and the party gets to do what it wants in terms of nomination. But traditionally we, you know, hold the primary. I think really the laws related to Primary voting is just to ensure that voting is open and insurance that and and to ensure that that states comply with the rules for primary voting, but it's not really to ensure that candidates are qualified or that the party is, you know, doing a good job and putting candidates forward or even that they select the candidate that came out on top.

That's really up to the party to decide.  So  I think in this sense, the real question is not whether or not Trump should be on the ballot.  The real question is, should Trump be on the ballot for the overall election? And I expect the Supreme court will want to hear that. I mean, if I had to get out my  My crystal ball here, which I don't own, I tell clients I definitely do not have a crystal ball, but on this one I'll go out on a limb.

I think he's going to be allowed on the ballot in every single state, especially if he's the nominee. And I don't see any realistic challenges. Most states have agreed with this position so far. The law seems to indicate that that should be the position. And I think that no court is really going to want to risk.

Removing Donald Trump from the full election ballot if he is the party's nominee, unless there's some sort of conviction at trial between now and then. Now, if he gets convicted for the January 6th stuff, all bets are off. I mean, if, if Chutkin's trial actually goes before the election, there's a really good chance that he could be removed from all of the ballots.

And I think I might even support that argument because he received, as I mentioned before, the due process.  That was necessary. So for those who were able to hang in there for these whole  21 minutes,  I Appreciate it. I'll come back on periodically for Some additional updates on what's going on in this crazy world and thank you very much for listening Feel free to click that subscribe button.