A SCOTUS ruling in favor of Trump's immunity claim would effectively end Smith's cases

 April 20, 2024

Special Counsel Jack Smith's two criminal prosecutions of former President Donald Trump -- the first involving Trump's retention of classified documents after leaving office, the second involving interference in the 2020 election aftermath -- have been living on borrowed time for the past several months.

Both of those cases could be immediately ended before a trial even begins if the Supreme Court rules in favor of Trump's claim of presidential immunity from prosecution, as Newsweek first reported in December 2023.

Smith's election case against Trump also faces a secondary and admittedly more limited threat from the Supreme Court, which is separately considering a case about the Biden administration's alleged overbroad and misapplied use of a particular "obstruction" statute against Jan. 6 defendants -- a statute that undergirds two of Smith's four election-related counts against Trump.

Supreme Court will soon hear arguments on Trump's immunity claim

SCOTUSblog reported this week that the Supreme Court will hear arguments next week on former President Trump's immunity claim, with a final decision likely to be rendered by June or July.

Trump has argued that he retains "absolute immunity" from criminal prosecution for actions that were linked to his "official duties" during his presidency, and has pointed to certain constitutional provisions and prior Supreme Court rulings as evidence in support of that claim, to say nothing of the danger and limitations that would be posed to any future president by the ever-present threat of partisan criminal prosecution after leaving office.

Smith, of course, disagrees and has counterargued that Trump's immunity ended as soon as he left office in 2021, but also asserted that even if former presidents continue to enjoy at least partial immunity, such immunity would not cover the alleged crimes that Trump has been charged with.

A ruling favoring Trump on immunity "would essentially end Smith's case"

The Newsweek article from December noted that several former federal prosecutors all reluctantly admitted that the fate of Special Counsel Smith's prosecutions of former President Trump rested in the hands of a majority of the Supreme Court justices.

Former federal and state attorney Michael McAuliffe told the outlet, "An adverse ruling on the immunity issue would essentially end Smith's case against Trump." That take was seconded by former federal prosecutor Neama Rahmani, who also acknowledged that Smith would be unable to continue his prosecutions of Trump if the high court rules in Trump's favor on the immunity claim.

Even former federal prosecutor Harry Litman, an avowed Trump hater who often optimistically predicts impending legal doom for the former president, outlined the three most likely scenarios for how the Supreme Court might rule on immunity, seemed to agree that the court siding with Trump would spell "the end of the case."

Supreme Court's ruling on 1512(c) "obstruction" statute could also impact Smith's prosecution of Trump

While a Supreme Court ruling in favor of former President Trump's claim of immunity would necessarily result in the end of Special Counsel Smith's two prosecutorial efforts, the election-related indictment also faces another threat of being substantially undermined by another case that the high court heard oral arguments earlier this week.

SCOTUSblog separately analyzed the arguments on Tuesday in the case of Fischer v. United States, which involves an "obstruction" statute initially passed into law following the Enron financial scandal that was intended to deal with the destruction of evidence and tampering of witnesses in white-collar crimes but instead has been pressed against hundreds of defendants charged for their participation in the Jan. 6 Capitol riot.

That challenged statute is 18 U.S.C. § 1512(c)(2), which states: "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."

Per the analysis, the three liberal jurists seemed fine with the government broadly applying that law and its excessive punishment to Jan. 6 protesters while the majority of conservative justices appeared skeptical and signaled the possibility that the court may rule against the manner in which the Biden administration has employed the law.

If the Supreme Court decides to strike down or limit how 1512(c) is utilized by prosecutors, that would likely not only result in hundreds of Jan. 6 defendants having sentences reduced or being granted new trials but could also sharply undermine or lead to the dropping of two of Smith's four election-related charges against Trump that are grounded upon the same challenged "obstruction" statute.

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