Charges against Donald Trump, Jan. 6 rioters at stake as U.S. Supreme Court hears debate over obstruction law

Former President Donald Trump walks out of the courtroom following the first day of jury selection at the Manhattan criminal court in New York on April 15, 2024.
| Photo Credit: Reuters

The Supreme Court on April 16 is taking up the first of two cases that could affect the criminal prosecution of former President Donald Trump for his efforts to overturn his election loss in 2020. Hundreds of charges stemming from the Capitol riot also are at stake.

The justices are hearing arguments over the charge of obstruction of an official proceeding. That charge, stemming from a law passed in the aftermath of the Enron financial scandal more than two decades ago, has been brought against 330 people, according to the Justice Department. The court will consider whether it can be used against those who disrupted Congress’ certification of Joe Biden’s 2020 presidential election victory over Mr. Trump.

The former President and presumptive nominee for the 2024 Republican nomination is facing two charges in the case brought by special counsel Jack Smith in Washington that could be knocked out with a favorable ruling from the nation’s highest court. Next week, the justices will hear arguments over whether Mr. Trump has “absolute immunity” from prosecution in the case, a proposition that has so far been rejected by two lower courts.

The first former U.S. President under indictment, Mr. Trump is on trial on hush money charges in New York and also has been charged with election interference in Georgia and with mishandling classified documents in Florida.

In Tuesday’s case, the court is hearing an appeal from Joseph Fischer, a former Pennsylvania police officer who has been indicted on seven counts, including obstruction, for his actions on Jan. 6, 2021, when a mob of Mr. Trump’s supporters stormed the Capitol in a bid to keep Mr. Biden, a Democrat, from taking the White House. Lawyers for Mr. Fischer argue that the charge doesn’t cover his conduct.

The obstruction charge, which carries up to 20 years behind bars, is among the most widely used felony charges brought in the massive federal prosecution following the deadly insurrection.

Explained | The U.S. House Select Committee report on the January 6 Capitol attack

Roughly 170 Jan. 6 defendants have been convicted of obstructing or conspiring to obstruct the Jan. 6 joint session of Congress, including the leaders of two far-right extremist groups, the Proud Boys and Oath Keepers. A number of defendants have had their sentencings delayed until after the justices rule on the matter.

Some rioters have even won early release from prison while the appeal is pending over concerns that they might end up serving longer than they should have if the Supreme Court rules against the Justice Department. That includes Kevin Seefried, a Delaware man who threatened a Black police officer with a pole attached to a Confederate battle flag as he stormed the Capitol. Seefried was sentenced last year to three years behind bars, but a judge recently ordered that he be released one year into his prison term while awaiting the Supreme Court’s ruling.

The high court case focuses on whether the anti-obstruction provision of a law that was enacted in 2002 in response to the financial scandal that brought down Enron Corp. can be used against Jan. 6 defendants.

Mr. Fischer’s lawyers argue that the provision was meant to close a loophole in criminal law and discourage the destruction of records in response to an investigation. Until the Capitol riot, they told the court, every criminal case using the provision had involved allegations of destroying or otherwise manipulating records.

But the administration says the other side is reading the law too narrowly, arguing it serves “as a catchall offense designed to ensure complete coverage of all forms of corrupt obstruction of an official proceeding,” including Mr. Fischer’s “alleged conduct in joining a violent riot to disrupt the joint session of Congress certifying the presidential election results.” Mr. Smith has argued separately in the immunity case that the obstruction charges against Mr. Trump are valid, no matter the outcome of Mr. Fischer’s case.

Most lower court judges who have weighed in have allowed the charge to stand. Among them, U.S. District Judge Dabney Friedrich, a Trump appointee, wrote that “statutes often reach beyond the principal evil that animated them.” But U.S. District Judge Carl Nichols, another Trump appointee, dismissed the charge against Mr. Fischer and two other defendants, writing that prosecutors went too far. A divided panel of the federal appeals court in Washington reinstated the charge before the Supreme Court agreed to take up the case.

While it’s not important to the Supreme Court case, the two sides present starkly differing accounts of Mr. Fischer’s actions on Jan. 6. Mr. Fischer’s lawyers say he “was not part of the mob” that forced lawmakers to flee the House and Senate chambers, noting that he entered the Capitol after Congress had recessed. The weight of the crowd pushed Mr. Fischer into a line of police inside, they said in a court filing.

Sen. Tom Cotton of Arkansas and Reps. Jim Jordan of Ohio, Lauren Boebert of Colorado, Matt Gaetz of Florida and Marjorie Taylor Greene of Georgia are among 23 Republican members of Congress who say the administration’s use of the obstruction charge “presents an intolerable risk of politicised prosecutions. Only a clear rebuke from this Court will stop the madness.” The Justice Department says Mr. Fischer can be heard on a video yelling “Charge!” before he pushed through a crowd and “crashed into the police line.” Prosecutors also cite text messages Mr. Fischer sent before Jan. 6 saying things might turn violent and social media posts after the riot in which he wrote, “we pushed police back about 25 feet.” More than 1,350 people have been charged with Capitol riot-related federal crimes. Approximately 1,000 of them have pleaded guilty or been convicted by a jury or judge after a trial.

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A Former And Current Democrat Wrestle Against A Moral Universe

Dr. Martin Luther King Jr. once said, “The arc of the moral universe is long, but it bends toward justice.” It is a favorite quote of former Pres. Barack Obama (who had it woven into his White House rug) and cited by other politicians, often around MLK Day. But despite its good sentiment, some scholars have noted the meaning was taken out of context to excuse inaction all for a dream of “justice” we might never see in this world.

So, let’s keep this debate in mind when we discuss two specific guests on this week’s Sunday shows.

It’s the Kyrsten Sinema Show!

The senior senator from Arizona, part-time reseller and full-time asshole made a rare appearance on a Sunday show to answer some questions. She also made sure it was at the McCain Institute in front of a live audience with CBS’s “Face The Nation” so that she could receive maximum attention while being the feckless senator we all know.

For example, when Sinema criticized the Biden Administration’s border policy, host Margaret Brennan mentions an immigration bill Sinema and Sen. James Lankford of Oklahoma introduced. But when asked about passing it before Title 42 expires, Sinema joked about the uselessness of the Senate.

SINEMA: Oh, God, no, Margaret. This is the United States Senate. (laughter)

BRENNAN: That’s what I was saying.

SINEMA: I don’t think you can get agreement on a restroom break by next Thursday. The United States Senate is functioning at a fairly dysfunctional level right now.

Hahahahaha! Isn’t it truly hilarious that the people elected to govern can’t do a single thing?! And that they not only know they won’t take action to help their constituents but find it a joke??! Just hilarious, Sinema. Hardy Har Har …

Sinema was asked about Republicans holding the full faith and credit of the US hostage for draconian cuts with the debt ceiling and she outlined the real problem — “both sides.”

While Sinema admitted Biden is correct to want a “a clean debt limit to meet the full faith and responsibility of the United States of America,” she blamed him for not prioritizing Kevin McCarthy’s political career over destroying the American people’s lives or the global financial system.

SINEMA: […] Kevin McCarthy, as we all saw, took him a long time to become Speaker. Barely squeaked by with the votes, had to make a lot of concessions to get the job and he has a very, very narrow road to walk. So he has to thread a needle where he can get the votes he needs to pass a debt limit increase and continue to be Speaker. […] Reality is the bill that Kevin and his colleagues passed through the House is not going to be the solution. The votes do not exist in the United States Senate to pass that. But what the president is offering is not a realistic solution either. There’s not going to be just a simple clean debt limit. The votes don’t exist for that. […]

The votes DO exist to pass a clean limit, Sinema. You just need all the House Democratic votes and enough sane Republicans for a majority. But the reason that someone like Sinema or McCarthy can’t see that is because anything that doesn’t advance their careers or risks political power for their constituents is not seen as a solution.

Ironically, Sinema’s Senate career and McCarthy’s speakership might be over soon due to that very calculus.

Dick Durbin: The Susan Collins of Chuck Schumers

Speaking of political inaction, Senate Judiciary chair Dick Durbin was on CNN’s “State of The Union” with Jake Tapper.

Tapper asked Durbin about what Congress can do to solve the gun violence that led to ANOTHER mass shooting in Texas on Saturday.

DURBIN: There is something more that America can do, and it’s called an election.

Oh, fuck you, Dick. Your answer to why Congress can’t meet the demands for action from the majority of Americans tired of gun violence is “vote harder”?? Fuck off! Americans are united. It’s Congress who isn’t.

Even in a Fox news poll.

Record-breaking election turnouts in 2018,2020 and 2022 is why Durbin even has a chairmanship. Voters are doing/have done everything they can only to have their votes “rewarded” by political apathy.

But that’s too much to ask from someone like Durbin. When asked about Clarence Thomas’s recent revelations, Durbin at best could muster mild disappointment.

TAPPER: Some of your fellow Democrats on Capitol Hill say that this seems to go beyond ethical lapses; it rises to the level of corrupt behavior. Is that a word you would use, corrupt?

DURBIN: Well, I can tell you that the conclusion most people would reach is that this tangled web around Justice Clarence Thomas just gets worse and worse by the day. […] The question is whether it embarrasses the Supreme Court and the Chief Justice. […] This is the Roberts court, and history is going to judge him by the decision he makes on this. He has the power to make the difference.

History? You’re the Senate Judiciary Committee chair! It’s YOUR job, you feckless fossil! If you are waiting on history, which if I remember is written by the victors, we are all doomed.

Durbin, who can’t even stand up to end the bullshit blue slips, also made an idle threat about taking action about Thomas on Twitter like a telephone tough guy.

Tapper, who is no progressive, seemed almost as frustrated by this when he asked about Dianne Feinstein’s return to the Senate and let his inner sauciness out on Durbin’s bullshit about Feinstein’s wishes over the needs of the American people.

Republicans are pursuing evil, but politicians like Durbin and Sinema help gatekeep progress through incrementalism instead of fighting hard.

And Dick Durbin should know better.

Have a week.

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Gosh, Wonder Why Arizona’s Republican AG Sat On Report Showing No Vote Fraud?

As yet another regular reminder that you should never trust Republicans when their lips are moving (or at any other time), the Washington Post reports (free gift linky) that former Arizona Attorney General Mark Brnovich ordered his staff to do a comprehensive investigation back in 2021 of claims of fraud and irregularities and shenanigans and HOOPLA in Arizona’s administration of the 2020 election. So how did that turn out, exactly?

Investigators prepared a report in March 2022 stating that virtually all claims of error and malfeasance were unfounded, according to internal documents reviewed by The Washington Post. Brnovich, a Republican, kept it private.

Instead of releasing the full report that debunked the Big Lie many Arizona Republicans fervently believed in, and ran on in the midterms, Brnovich issued a bogus “Interim Report” that just plain lied about the investigation, claiming it turned up “serious vulnerabilities” in Arizona’s election processes.

Oh, yes, it gets worse, too: not only did that “interim” report leave out “edits from his own investigators refuting his assertions,” Brnovich then sat on a second report from his investigators in September last year, an “Election Review Summary” that once again “systematically refuted accusations of widespread fraud and made clear that none of the complaining parties — from state lawmakers to self-styled ‘election integrity’ groups — had presented any evidence to support their claims.”

Brnovich never released it. It only came to light after Arizona voters elected Democrat Kris Mayes to replace Brnovich. Mayes released the documents to the Post this week in response to a request from the paper. The Post notes that Mayes “said she considered the taxpayer-funded investigation closed[.]” Hooray for sunshine!

The story also says Mayes has let leaders in Maricopa County know the state is no longer investigating the county’s election processes. Wingnut World has focused much of its rage on Maricopa, since it’s the state’s most populous, and is where all those liberal RINO city slickers who think they’re better than you obviously rigged the election for Biden. How could a large, diverse metro area possibly have voted blue without cheating?

Trump-endorsed dipshit Kari Lake has also accused Maricopa County officials of cheating her out of a win in the governor’s race last fall, either by incompetence or outright theft.

The Post explains that Brnovich advanced bullshit claims about the 2020 vote in Maricopa “that his own staff considered inaccurate.” As the story puts it as delicately as possible, the documents also “suggest” that Brnovich and his team “privately disregarded fact checks provided by state investigators while publicly promoting incomplete accounts of the office’s work.”

The story paints Brnovich as a wishy-washy mainstreamish Republican who immediately after the election said Trump lost, and even stood up to Trump’s attempts to get the vote thrown out. But in the run-up to last year’s GOP primary for US Senate, which he lost to eventual nominee Blake Masters, Brnovich tried playing in the MAGA sandbox.

On wingnut radio, Brnovich promoted his bullshit “interim report” — the one prepared after the real report found no evidence of fraud — and hinted that “It’s frustrating for all of us, because I think we all know what happened in 2020.”

That interim report was red meat to election deniers, who were certain it was proof of rampant cheating. Delivering it to then-state Senate President Karen Fann (R), Brnovich wrote in a cover letter that investigators had found “problematic system-wide issues that relate to early ballot handling and verification.”

No they hadn’t. They wrote on a draft of the letter that “We did not uncover any criminality or fraud having been committed in this area during the 2020 general election.”

For some dark depressing larffs, see the full draft of the “interim report” (no paywall) with portions of Brnovich’s text highlighted in yellow and the investigators’ NO WE DID NOT, FUCKSTICK replies in blue. For instance, Brnovich suggests maybe Maricopa County didn’t do a very good job of verifying signatures on mail-in ballots. There’s a note politely pointing out that the county hired a handwriting expert to train staff, and that they had a process to escalate iffy cases for further review. Brnovich claimed Maricopa County didn’t always reply to requests for records. The staff said YEAH THEY DID, YOU PUKE (a loose paraphrase).

Surprise, surprise: hardly any of their notes made it into the revision.

In September last year, a bit more than a month after Brnovich lost the Senate primary to Masters, Brnovich’s investigators wrote up an eight-page memo titled “Election Review Summary” that explained they received 638 complaints about the 2020 election, of which 430 were worth investigating. (The memo doesn’t say what sort of complaints they rejected; we’ll just speculate that any claims Maricopa County was infested with communists, demons, and pedophiles weren’t given too much credence. But there we go making up excuses for the cover-up.)

Out of the 430 investigations, just 22 cases went to prosecutors, and a whopping two cases of felons who voted illegally ended in convictions. The investigators also noted that “high profile allegations” of widespread fraud by groups like Cyber Ninjas, True the Vote, and from various politicians didn’t amount to a hill of beans. Cyber Ninjas, the outfit that did the months-long fraudit of Maricopa ballots, claimed to have turned up a long list of allegedly dead voters whose votes were counted, but “no one on the list of dead voters was dead, nor had they voted.”

And so on.

Mark Finchem, the Trump-endorsed election denier who lost his bid for secretary of state, claimed an unnamed “source” tipped him off to 30,000 fake votes in Pima County, home to Tucson, but he curiously didn’t tell the investigators this, “specifically stating he did not have any evidence of fraud and he did not wish to take up our time.” Finchem did provide four absentee ballots that had been sent to people who had moved from the addresses where they were sent, but the memo notes that the Postal Service doesn’t forward ballots, the envelopes weren’t opened, and Maricopa County hadn’t received any change of address information from the voters who’d moved. Fraud!

Again, Brnovich never made public any of these findings, even though the real report was ready in plenty of time for the midterms, in which virtually all the statewide Republican candidates promoted lies about massive fraud in 2020. Might have been useful information for voters, as Mayes, the new AG, pointed out:

“The people of Arizona had a right to know this information before the 2022 election,” Mayes said in an interview. “Maricopa County election officials had a right to know that they were cleared of wrongdoing. And every American had a right to know that the 2020 election in Arizona, which in part decided the presidency, was conducted accurately and fairly.”

Mayes has pledged to refocus the AG office’s “election integrity” task force. Under Brnovich, it had been sent to look for election fraud, and found practically none. Mayes thinks it would be a much better use of taxpayer funds for her office to ensure people are all able to vote, so the task force will now be weeding out illegal barriers to voting.

God damn, we love a happy ending.

[WaPo (gift link) / Photo (cropped): Gage Skidmore, Creative Commons License 2.0]

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