What should the Justice Department do about Trump’s January 6 impeachment following the Supreme Court’s Fischer ruling?

Even though the Supreme Court has not yet issued a ruling on presidential immunity (expect it on Monday morning), Donald Trump may no longer need it to win.

The justices’ decision in Fischer v. United States on Friday scuttled much of the Justice Department’s investigation into the former president’s involvement in the Jan. 6 Capitol riot.

Even if a court on Monday finds presidents fully criminally liable at the federal level after they leave office, President Biden and Attorney General Merrick Garland would be wise to shut down the special counsel’s investigation, blame its failures on the Supreme Court, and leave the question of Trump’s liability to the people. in November.

The legal issue itself in Fischer v. United States was relatively simple and uncontroversial. He found that the Department of Justice misread the obstruction provisions of the Sarbanes-Oxley Act of 2002 (“SOX”). SOX made it a crime for company personnel to destroy documents and tamper with witnesses as part of an official federal investigation.

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Supreme Court Justice John Roberts, ruling in a 6-3 majority, ruled that “the government must show that the defendant compromised or attempted to compromise the availability or integrity of records, documents, objects or other things used in an official proceeding.”

The DOJ can’t charge someone with merely disrupting or delaying official proceedings; the disruption must interfere with actual documents, evidence or witnesses. Otherwise, the court noted, the government could charge a peaceful protester or lobbyist with trying to influence an official proceeding.

Fischer agrees with the court’s recent case law, which limits fraud allegations to cases where there has been actual harm to a material asset (e.g. financial loss), as well as the 2015 Yates case, in which the Supreme Court ruled that the Department of Justice wrongly prosecuted a fisherman who threw an undersized fish back into the ocean under SOX because “fish” are not “tangible items ” similar to “records” or “documents” in the context of SOX financial reform.

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But what made this case important, far beyond its legal significance, was that the Justice Department used SOX as its primary weapon against the January 6 rioters. It charged more than 300 defendants, including Trump, with allegedly violating anti-records fraud laws by trying to prevent Congress from counting the president’s electoral votes on January 6, 2021.

The Justice Department has sought to turn SOX into a general obstruction of justice statute because the 20-year maximum penalty puts enormous pressure on defendants to agree to a plea deal.

Special Counsel Jack Smith followed the Biden Department of Justice playbook and impeached Trump on four counts, including two for obstruction of SOX. Fischer tore out the heart of the prosecution.

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Smith could always try to press the issue, perhaps on some outlandish theory that submitting alternate slates manipulates the documentary evidence. But the Justice Department has a steep mountain to climb to prove beyond a reasonable doubt that Trump himself had a corrupt state of mind or that the alternate slate plan was indeed a fraud.

Smith’s other two allegations against Trump border on the frivolous. One alleges that Trump committed fraud against the United States, a charge typically leveled against government contractors who overcharge their bills or hospitals who overcharge Medicare or Medicaid.

Just last year, the Supreme Court clarified that fraud must involve corrupt activity to obtain money or property; this does not apply to politicians pursuing their political interests. Whatever one thinks of Trump’s behavior on January 6, it does not amount to a quid pro quo bribe or financial corruption.

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Smith’s latest allegation is that Trump violated the voting rights of every American by trying to change the election results. Not only has no open-ended theory such as this ever gained approval from a federal court (or a former attorney general, for starters), but Smith’s argument would likely render the Voting Count Act itself unconstitutional. For example, this law allows majorities in the House and Senate to reject state electors.

The Justice Department should not be making weak legal arguments to convict any defendant, much less a former president. Public trust in prosecutors and the criminal justice system as a whole is in serious decline. If Attorney General Garland wants to defend the rule of law, he should close the special counsel’s investigation.

Smith’s extreme, now-rejected interpretation of criminal law has only reinforced the belief that the Justice Department is pursuing Trump for partisan reasons related to November 2024, not January 2021.

If Smith truly believes that Trump was trying to block the peaceful transition of power, he should charge the former president with insurrection, sedition, or both. But Smith and his superiors undermine the rule of law if they publicly accuse Trump of insurrection and instead accuse him of baseless fraud, rejected obstruction and frivolous theories about voting rights.

After another defeat at the Supreme Court, Biden would be wise to let the people judge Trump in the November election rather than continue to damage the law in the hopes of knocking out his opponent in court.

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John Shu is a lawyer and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.