Throughout 2020, both Republicans and Democrats warned that the U.S. Supreme Court would ultimately determine the winner of the presidential election — albeit for different reasons.
Democrats feared a conservative majority would uphold what they called “voter suppression” laws to tighten voting requirements that might benefit President Trump. Republicans worried how the court would handle cases related to lax absentee voting measures enacted as a result of the coronavirus pandemic that gave Joe Biden a big advantage.
Democrats, it is fair to say, won the day in 2020. Justices systematically denied consideration of numerous lawsuits challenging the validity of elections in Pennsylvania, Wisconsin, Georgia, and Michigan — a persistent sore spot on the Right.
Which is why many Republicans turn a skeptical eye toward the court’s involvement in 2024 election matters. How will justices who punted on dealing with flagrant election fraud in 2020 now confront unprecedented political issues central to the Biden regime’s lust to put Trump behind bars before Election Day? Will the court again take the easy way out or find a spine at a time when the American people need it most?
Trump and his supporters received a bit of holiday cheer when the court announced on December 22 it would not consider a petition filed by Special Counsel Jack Smith to bypass the appellate process and hear arguments on Trump’s claims of presidential immunity in the D.C. case. Judge Tanya S. Chutkan issued an order earlier this month denying Trump’s motion to dismiss Smith’s four-count indictment for January 6 and efforts to “overturn” the 2020 election based on immunity protections.
Opining that Trump was charged with “attempting to usurp the reins of government,” Chutkan, an Obama appointee with a record of making anti-Trump statements in court and imposing excessive sentences on his supporters, rambled in a 48-page missive before reaching her landmark decision that being president “does not confer a lifelong ‘get-out-of-jail-free’ pass.” (Monopoly game references are super cute when determining the fate of a former president and presumptive presidential candidate, right?)
While the media and Democrats cheered Chutkan’s spiking of the ball, what they perhaps didn’t realize at the time is how her act stopped the clock on the March 4 trial date. The judicial process on questions of immunity effectively halts all other court proceedings — which is why Smith took the rare step of seeking a premature resolution by the highest court.
Smith had better luck before the D.C. Circuit court; a three-judge panel — two Democrats and one Republican — will hear oral arguments on Trump’s appeal on January 9. Even if the panel issues a favorable ruling for Smith in quick fashion, other procedural relief will extend a final resolution before the matter can head to SCOTUS.
The clock is ticking there, too. The highest court’s current term concludes at the end of June, providing little time for a determinative outcome. But Smith faces perhaps a more daunting obstacle already under consideration by SCOTUS: a challenge to the government’s overly broad interpretation of 1512(c)(2), obstruction of an official proceeding.
A J6 Jamboree at SCOTUS
The statute passed in the aftermath of the Enron/Arthur Anderson accounting scandal has been weaponized by the Department of Justice in January 6 cases. More than 300 J6 defendants have been charged with 1512(c)(2) resulting in dozens of convictions and hefty jail sentences; the count also represents half of Smith’s criminal indictment against Trump in Washington.
Oral arguments at SCOTUS will be heard this spring in Fischer v. USA, which challenges a muddled 2-1 D.C. appellate (circuit) court ruling that barely upheld the DOJ’s indictment of Joseph Fischer, a Capitol protester who entered the building long after Congress evacuated, on the count.
Joseph Fischer v. United States of America Petition for a Writ of Certiorari 9/23
Discussions during oral arguments will signal how the court might ultimately rule — and at an inopportune time for Mr. Smith. If it appears a majority are poised to overturn how the DOJ has used 1512(c)(2), Smith could have an even bigger problem on his hands than the immunity question.
It is hard to imagine a scenario where SCOTUS does not significantly correct or outright reverse the appellate court’s judgment on obstruction. A few judges in Washington, including the chief judge of the D.C. district court, recently delayed sentencing J6ers convicted of the count to await SCOTUS’s ruling.
At the same time Smith and the media are desperate to maintain the disintegrating J6 “insurrection” narrative, other related cases are making their way through the federal court system. Throughout 2024, SCOTUS will be asked to tame a legal hydra encompassing multiple ways the DOJ and lower courts exploited the law to punish Trump allies and voters.
The D.C. appellate court is currently weighing the conviction of Steve Bannon for contempt of Congress for defying a subpoena by the January 6 Select Committee, a case that surely will end up at SCOTUS. It is expected former Trump advisor Peter Navarro, also convicted of contempt of Congress in September, will follow suit after his sentencing next month.
Appeals for other J6 defendants convicted of unprecedented trespassing charges and subjected to unusual sentencing enhancements remain to be decided. And the process is just beginning for the appeals of high-profile convictions of the Proud Boys and Oath Keepers — undoubtedly creating more docket fodder for SCOTUS next year.
Trump’s lawyers also are expected to ask SCOTUS to review a separate appellate court decision upholding Chutkan’s gag order on the former president.
The Other Case No One is Talking About
Litigation in the classified documents case in southern Florida — proceedings also on hold per a November order by Judge Aileen Cannon based on the progress of the D.C. trial — hasn’t even begun. Trump faces 42 counts for retaining alleged “national defense information” papers and obstructing the initial DOJ investigation. Two co-defendants face obstruction charges as well.
At issue currently in that trial, set to begin on May 20, are Smith’s attempts to prevent Trump and his two co-defendants from accessing discovery under the Classified Information Procedures Act, more untested legal territory. Can the government prevent a former president from viewing alleged “classified” material produced during his own administration? Not to mention the larger question as to whether a former president can legally keep those files after he leaves office?
If Smith’s Jan 6 case presents novel issues for the court to resolve, the classified documents case raises thornier questions that SCOTUS must eventually settle.
No Guts, No Glory
Not every case before SCOTUS next year will have originated at the DOJ. Republicans just filed a petition before the highest court seeking to overturn the Colorado Supreme Court’s order removing Trump from the primary ballot. Justices can put a stop to the 14th Amendment “insurrection” nonsense, halting the Left’s abuse of the provision to keep Trump and other “insurrectionist” Republicans out of office.
But what if they don’t? That’s the nagging question in the collective mind of the MAGA Right — will the court balk on every controversial matter from presidential immunity and the 14th Amendment to 1512(c)(2) and beyond? The recent conduct of Brett Kavanaugh and Amy Coney Barrett, not to mention the historical conduct of Chief Justice John Roberts, does little to inspire confidence among the base. Nothing, even the most layup case, is a given.
A safe bet is the court will work hard to appear impartial, where half the cases go Trump’s way and the other half don’t. Deny Smith’s speedy cert motion but also deny Trump’s challenge to the immunity order. Overturn Colorado Supreme Court but uphold 1512(c)(2). Toss out a few lower level J6 convictions but refuse to consider high-profile convictions for “domestic terrorists.”
At a time when the scales of justice are so unbalanced, a self-conscious SCOTUS seeking to appear balanced might be the most dangerous threat of all.
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Julie Kelly is an independent journalist covering the weaponization of the U.S. Government against her citizens, Follow Kelly on Twitter / X.
Photo “Supreme Court” by Mark Fischer. CC BY-SA 2.0.
