Having looked at some of the preliminary stuff surrounding the Trump cases, let’s look at the ones before before SCOTUS itself, although I’ll also look at the one currently in front of the Second Circuit Court, being the Presidential immunity argument that SCOTUS refused to expedite to themselves, waiting to see what becomes of it.

United States v Trump (the Jan 6 charges)

The charges against Trump specifically are:

  1. Conspiracy to defraud the United States
  2. Conspiracy to obstruct
  3. Obstruction of an official Act
  4. Conspiracy against rights.

There are two key factors in this case, Presidential Immunity and the DOJ stretching an obscure law related to financial corporate fraud to claim conspiracy and obstruction (points 1, 2 and 3).

I think Trump’s lawyers should have focused on attacking the second factor because it’s the same sort of legal stretching crap that Smith got done on before, because it’s a major part of almost every single case against the January 6 defendants, and because one of those cases is before SCOTUS.

Presidential Immunity

If all you do is follow the MSM you’ll likely have heard that President Trump’s lawyers argued that he’d be immune from criminal prosecution in the courts even he sent SEAL Team 6 to kill one of his opponents.

In fact it was the Second Circuit Judge who crafted up that hypothetical, to which the lawyer argued back with a “qualified yes” but only in the context that any such President would be quickly impeached for that, convicted and turfed, after which the courts could have at it.

The MSM and TDS-sufferers hate context.

Something similar actually did happen with Bill Clinton, who was found guilty of perjury in the famous Monica Lewinsky scandal and disbarred after he left office, even though his impeachment on that had failed to convict him.

The essence of the argument, then, is not that the President has a special immunity but that the courts may entertain accusations based on his official acts only after another branch of government, Congress, has determined that they are serious enough to demand prosecution –  the procedure for prosecuting a President is extraordinary but not tantamount to immunity.

The Second Circuit judges did not explore this in argument, which tells me that they may find against Trump on this issue and thereby opening up a hell of a can of worms, as described years ago in a book called Constitutional Cliffhangers (2012), which explored the immunity question from a purely academic POV:

Unfortunately, this entire discussion brings us no closer to a conclusion. Short of a constitutional amendment, the only way to answer the immunity question would be to prosecute a president, have the president assert immunity, and have the courts rule definitively on what the Constitution requires. [footnote omitted] But if it came to that, the country would be badly distracted and divided by the political fallout from the case. With the legal issues wrapped up in a political package, it would be harder for justice to be done and be publicly accepted.

Trump’s lawyer also made a good point that has often been raised by the Far Left against US Presidents; (for example, the famous Anarchist professor, Noam Chomsky, has repeatedly said that every post-WWII President should have been charged with War Crimes):

Turning to the merits, if I may, Your Honor, to authorize the prosecution of a president for his official acts would open a Pandora’s box from which this nation may never recover. Could George W. Bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to Congress to induce the nation to go to war in Iraq under false pretenses? Could President Obama be potentially charged with murder for allegedly authorizing drone strikes, targeting US citizens located abroad?

And at least in one case, Bill Clinton, serious thought was applied to going after him over pardons he’d given as he left office on Jan 20, 2001, since one of them involved a big Democrat donor, Mark Rich, whose ex-wife donated $450,000 to the infamous Clinton Foundation just before the pardon. The new Bush administration decided to hold fire and former NYSD prosecutor Andrew McCarthy who was involved in the decision, explains why:

It is not that Clinton’s eleventh-hour pardons of Rich, a couple of Marxist domestic terrorists, his brother Roger, a member of his cabinet, and sundry rogue characters were not a historically shameful episode. It is not that some of the pardons, Rich in particular, did not smack of a quid pro quo – grist for an indictment when the perp is someone other than the president of the United States. No, it is that on balance, the nation is better served by avoiding the banana-republic corruption of the governing system that would happen if we normalized the prosecution of former presidents. And it is that, when the chief executive acts within the ambit of his executive authority – as a president undeniably does when issuing a pardon – subordinate executive officials, prosecutors, have no business, post facto, trying to turn the official act into a crime by reading the former president’s mind and finding corrupt intent.

But as that long-ago law professor stated, “With the legal issues wrapped up in a political package, it would be harder for justice to be done and be publicly accepted.” If the Second Circuit boots the immunity argument there would be immediate fights in lower courts to determine what is and is not an “official act” of a President.

BTW, Trump once again stepped on his dick by shouting that “A PRESIDENT OF THE UNITED STATES MUST HAVE FULL IMMUNITY” – which is not what his lawyers argued!!! 🙄🙄🙄🙄🙄🙄

All this will likely end up in SCOTUS’s lap this year anyway and whichever way they rule it may be ugly with large segments of the public taking the decision as proof that:

  • SCOTUS is controlled by the “Deep State” who will not accept the people’s vote for Trump OR
  • SCOTUS is controlled by a pro-Trump conspiracy.

As McCarthy said, this Pandora’s box has not been opened by previous Administrations: sleeping dogs and all that. Too late now.

Conspiracy and Obstruction

This affects more than just Trump and future Presidents. In fact it will affect hundreds of cases against people who have been prosecuted by the DOJ for their various roles in the Capitol riots of January 6, 2021. The reason has to do with that word, “sedition”, which is even juicer than “insurrection” and which has been smeared across the word “obstruction” because it sounds so much worse – even though the specific charges arise from a seemingly mundane piece of legislation on corporate fraud.

More than twenty years ago a famous company called Enron (“The Smartest Guys In The Room”) went bankrupt to the tune of tens of billions of dollars, and accounting fraud was involved. It was a scandal and the US government went after the executives and others. They did get some convictions but found themselves stymied in other cases when Enron’s audit firm, the venerable Arthur Andersen, destroyed documents. The result was a huge piece of legislation in 2002 called the Sarbanes-Oxley Act, and among other things it included the following in section § 1512(c)(2):

c) Whoever 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, 
shall be fined under this title or imprisoned not more than 20 years, or both.

It’s the highlighted section that prosecutors like Matthew Graves, in the case of hundreds of Jan 6 protesters, and now Smith, in the case of Trump, are using to gain convictions for Jan 6, arguing that the Electoral College count was just such an “offical proceeding” and that the Jan 6 rioters were deliberately obstructing it – even ones not present.

There’s an element of the legal community that admires such cleverness, witness the respect the cops had for Mike Bungay even as he exploited loopholes to get his murder clients off.

But I don’t think this shit is admirable, and it fits perfectly with Smith’s past, and is the reason his most famous conviction was booted 9-0 by SCOTUS, complete with sharp rebukes by Justice Roberts. I’d bet good money that not a single Democrat or Republican who voted for Sarbanes-Oxley in 2002 ever imagined that an obscure section dealing with corporate fraud would be used to prosecute rioters who had committed no acts of violence or property damage – or anything else:

Julie Kelly is one reporter who has been relentless in documenting the excesses of the DOJ Jan 6 charges and lays it all out here on the RealClearPolitics site:

Donald Trump doesn’t know Thomas Robertson. But the former president’s fate appears inextricably tied to that of the former Army Ranger, who was convicted last year for his involvement in the Jan. 6, 2021 protest at the U.S. Capitol… The government indicted Robertson, [a Virginia police sergeant at the time who had] no criminal record, on six federal crimes including 1512(c)(2). Despite Robertson’s facing no charge related to assaulting a police officer or vandalizing property – and being inside the building for roughly 20 minutes – U.S. District Court Judge Christopher Cooper revoked Robertson’s bond in July 2021… he was sentenced to 87 months – more than seven years – in prison.
…
Before his April 2022 trial, Robertson filed a motion to dismiss the charge related to 1512(c)(2). Robertson argued, as others have in similar dismissal motions, that Congress’ work on Jan. 6 was outside the fundamental scope of the law. “The electoral count is a ceremonial and administrative event that is not an ‘official proceeding’ contemplated in §1512; it is not an adjudicative proceeding involving witness testimony and evidence,” his lawyer wrote.

Further, the courts’ historical definition of “corruptly” – requiring an individual intentionally breaking the law in an effort to “obstruct” something – had been stretched in Robertson’s case to encompass social media posts. Robertson generally objected to the ill-defined nature of the statute as well as DOJ’s selective use of it.

Kelly documents the back-and-forth of this case through the courts, all with split decisions and often with fiery dissents:

  • [granting Roberts] pretrial motion to dismiss his obstruction charges, ruling that the statute applied only in cases in which a defendant had taken “some action with respect to a document, record or other object.” – U.S. District Judge Carl Nichols.
  • “None of this evidence comes close to establishing at all — much less beyond a reasonable doubt — that Robertson acted with the intent to obtain an unlawful benefit for himself or another.” – Judge Karen Henderson
  • “[Section] 1512(c)(2) …seems an unlikely candidate to extend obstruction law into new realms of political speech….The government’s unprecedented use of 1512(c)(2) in Jan. 6 cases could apply to “advocacy, lobbying, and protest” in the future – Judge Gregory Katsas

If the Supreme Court doesn’t dump this bullshit now then I think that last phrase will have to be the one that eventually would. Assuming future GOP administrations are not squishes (never a sure bet) there would be every reason in the world to go after the Democrat party support groups: how many times have we seen Left-wing “protestors” interrupting ‘official proceedings’, such as hearings (the Kavanuagh hearings immediately spring to mind). Even a Democrat suckhole MSM source like the Washington Post can see the dangers:

Legal affairs columnist Jason Willick warned in April that the Fischer case “could make American politics even worse.” Willick criticized the DOJ for rejiggering the obstruction law at a time of heightened political tension. The country does not need, Willick wrote, “a new, open-ended grant of power to prosecutors to reach into the political system,” one that could be used in the future against “interest groups and officials who fall out of favor with the president’s Justice Department.”

Perhaps dumping a few hundred such protestors in jail for 24 months before they even see trial on 1512(c)(2) charges might change minds in Washington D.C. Or how about the recent case of Democrat Congressman Jamaal Bowman, who pled guilty to pulling a fire alarm in order to postpone a vote on the House floor. He was clearly aware of the comparison, since he made a ton of excuses about how he didn’t mean to do it and it was an accident (on video the fire alarm is clearly marked and he reaches directly for it) and wasn’t “trying to disrupt any official government proceeding”. BTW, the GOP House decided to do nothing about it (see what I mean about GOP squishes).

But I think SCOTUS will boot this use of the law. It would be the most rational, rule-based, and frankly sanest way out of this for both them and America. Courts, including SCOTUS, have booted cases before by applying the “vagueness doctrine.” They’ll have that term front and centre because this law is vague, and it obviously is being twisted in a partisan bad-faith way by anti-Trump, pro Democrat prosecutors in the DOJ, not just to obtain convictions but to gain sentences rarely seen outside of murders or acts of terrorism.

And what will their counter-argument be? “Oh gosh, yes, throughout its twenty year history it was believed to only apply to altering documents in order to disrupt the official proceeding of a criminal investigation and that’s all it was used for but now its language obviously also applies to rioting in the Capitol, and we never even suspected the language could mean that before because…. um…. ahhhh… the language is so vague”

Yeah. Laws that can mean fucking practically anything: a sound basis for a society of law and order.

And if it falls for the J6ers, it falls for Trump.