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SCOTUS Delivers Setbacks to Anti-Trump Lawfare

But using the law as a weapon is here to stay.

Protest outside SCOTUS after Trump v. United States Ruling
Photo Credit: Mason Letteau Stallings

This is how lawfare works. The Supreme Court on June 28 likely exonerated 350 of 351 January 6 riot defendants, rebuking President Joe Biden’s Department of Justice for abusing an existing law to go after them and turn them into felons. You wanna guess who the one last defendant still in trouble is?

Donald Trump remains charged with two counts of obstructing an official proceeding. At issue was part of the Sarbanes-Oxley Act of 2002 (Title 18, Section 1512(c)(2)), which was enacted after the collapse of the energy giant Enron. The law contains a catchall provision that makes it a crime to corruptly obstruct, influence, or impede any official proceeding. The justices rejected the idea that this statute, initially intended to criminalize things like shredding documents or tampering with evidence in corporate malfeasance cases, could be stretched by the Justice Department to include the disruptions of the counting process that took place on January 6.


The SCOTUS case is Fischer v. United States, brought by defendant Joseph Fischer, a former police officer seeking to dismiss the charge of obstructing an official proceeding—namely the certification of Joe Biden’s election victory. The law was repurposed against J6 defendants, claiming their protest obstructed the business of Congress certifying the election of Joe Biden to the presidency. This novel use of the law made the J6 protesters’ actions felonies, rather than the typical misdemeanor charges for illegal or disruptive protesting.

There are also First Amendment issues with criminalizing protests against the government that were more or less ignored in these cases (although Associate Justice Amy Coney Barrett did touch on the 1A in her dissent, and during oral arguments stated, “People are going to worry about the kinds of protest they engage in, even if they’re peaceful, because the government has this weapon.”)

Trump is in the picture because he too is charged with obstruction and conspiracy to obstruct, with the government claiming he worked in a variety of forms to overturn the 2020 election and make himself president for a second term. (that this was Constitutionally and technically impossible is somehow not relevant.) One aspect of this was Trump’s efforts to “exploit” the Capitol riot to his own ends, from which the obstruction charge arises. Specifically, the indictment says 

Donald J. Trump did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote.

SCOTUS said in its recent decision the interpretation used to convict 350 men was wrong. They said prosecutors overstepped the bounds of the law in using an obstruction statute to charge members of the group that stormed the Capitol. Chief Justice John Roberts, writing for the majority, read the law narrowly, saying it applied only when the defendant’s actions impaired the integrity of physical evidence.


Lower courts will now apply that new, stricter standard, and it will no doubt lead them to dismiss charges against many defendants. Future trials will not include the obstruction charge. Left unspecified at present is the fate of the 52 people convicted exclusively under the law challenged in Fischer, with no other charge—27 of whom are still serving sentences for that in federal prison.

But don’t worry about those J6 guys getting off too easily. The New York Times, practically salivating, writes, “Some federal judges in Washington who are handling the January 6 cases have already signaled that they are willing to increase the sentences defendants receive on crimes other than the obstruction count in order to make up for any loss in prison time.” Still, Trump saw the decision as a plus, posting on Truth Social that this was “a massive victory for J6 political prisoners.”

But what about Defendant 351, Trump himself? Special Counsel Jack Smith stated Trump’s charges will not be affected, saying Trump’s conduct could be considered a crime under even the narrow SCOTUS reading of the law. The former president is accused of tampering with documents (the law reads “have taken some action with respect to a document, record or some other object”) through his plot to create false slates of electors claiming he won in states actually carried by President Biden.

The accusations against him include that scheme to concoct illegitimate documents to disrupt Congress’s processing of electoral college votes, namely, fake elector ballots “cast” for Trump by fake electors. In other words, the J6 guys obstructed the vote count through their protest, acts now deemed by the Supreme Court to be an over-application of the Sarbanes-Oxley Act of 2002. Trump is charged under the same law but for different actions: those fake elector ballots.

Because that's how lawfare works, ignoring the intent of any given law—common sense, in many cases—in favor of microscopically picking out and if necessary reinterpreting those parts of the law might lead to a conviction. The goal is not justice or a search for truth; it is 3D Tetris designed to see if some set of actions can be twisted to fit any available law that might lead to a conviction.

That was the essence of Trump’s felony counts in the so-called “hush money” trial. What was essentially a bookkeeping error, labeling money paid to lawyer Michael Cohen as “legal expenses” when it was actually something else (reimbursement for money he supposedly gave to Stormy Daniels), grew into serial felonies because the prosecutor wanted it to.

As an example, the Clinton campaign committed the exact same bookkeeping error, labeling money for Michael Steele to produce the infamous Russian dossier legal expenses, and faced only a fine of $8,000. No jail time, no attempt to halt the campaign for president, not even a decent slap on the wrist. That’s lawfare. Republican lawmakers, including Senator Tom Cotton of Arkansas and Representative Jim Jordan of Ohio, filed a brief in Fischer’s case saying the Justice Department is using the law as an “all-purpose weapon against perceived political opponents.”

Same for those classified documents. Classified material was found purloined and improperly stored by Joe Biden (never mind Hillary Clinton and her email server) but no charges were filed. Trump is looking at a raft of charges for essentially the same act, without much explanation other than “face it, kid, that's lawfare.”

Associate Justice Ketanji Brown Jackson, surprisingly voting this time with the majority in Fischer, wrote courts concerned about the uneasy fit between this law and the J6 protesters' actions should not lose sight of “the backdrop of a real-world context” Congress wrote into the law after the document destruction in the Enron scandal. “There was nothing as far as I can tell in the enactment history as it was recorded that suggests that Congress was thinking about obstruction more generally,” she said. Nothing but lawfare, she might have added.

There’s one last wrench to throw into the works: immunity. Following the verdict in Fischer, the Court one work day later ruled in Trump v. United States the former president is entitled to absolute immunity from prosecution for official acts, and sent his J6 case back to the lower court. The SCOTUS ruling does draw a critical distinction between official and private conduct. The VP-hopeful Sen. J.D. Vance (R-OH) called it a “massive win,” as did Trump himself on Truth Social. Practically speaking, this all probably delays any verdict on Trump's J6 actions until after the election, when it will not matter. Lawfare, however, is here to stay, and it is unlikely that Trump will be its last victim.