Lawfare Daily: Supreme Court Rules on Fischer v. United States

[Introduction]

Roger Parloff: I think there's a fighting chance here that all of these cases survive, except for the ones before Judge Nichols.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, Lawfare's Editor in Chief, here with Lawfare Senior Editors Quinta Jurecic and Roger Parloff.

Quinta Jurecic: In Trump's case, there is a much more direct connection to actual documents that are at issue, those documents being the fraudulent electoral certificates.

Benjamin Wittes: In a live recording on June 28th, we talked about the Supreme Court's decision in Fischer v. United States, which limited the government's use of an obstruction statute against more than 300 January 6th defendants, including former President Trump.

[Main Podcast]

Welcome to Fischer Day. The Supreme Court this morning handed down United States v. Fischer. It's shorter than I expected, only 40 some odd pages. It has a majority opinion by the Chief Justice. It has a dissent by surprise, Justice Amy Coney Barrett, and it has a concurrence by, surprise, Ketanji Brown Jackson. It is ideologically splintered, or at least not ideologically pure, but the body of the court, the most of the conservatives are in the majority, and two of the three liberals are in dissent.

It is a win for the January 6th defendants, or some of them anyway, but it's not clear to me how big a win it is, and it has some implications, maybe, for the Donald Trump case. Though we're going to talk through exactly what those are and my instinct is that it affects it very little. I have given both of our guests today very specific things that we're going to want to talk about and little assignments.

So, but we're going to start with just the opinion itself. Roger give us an overview of how we got to this point and what the Supreme Court did today.

Roger Parloff: Yeah, so this is 1512(c)(2), 18 U.S.C. 1512(c)(2), corrupt obstruction of an official proceeding, and it matters because it's one of the most important charges in the January 6th cases.

It's been charged against at least 355 people out of there have been 1, 427 federal cases. So that's about 25%. Now the DOJ is it, that sounds pretty dire. If this is, if this, we're throwing those charges out, that sounds dire. It's not exactly, even if that's what it's doing it's not that catastrophic.

And it's not clear as we'll get into whether, even though the defendants won, it's not crystal clear that those charges are going to have to be dismissed in all cases. And also, of those 355, a lot have already been resolved on other grounds. Remember that nobody was charged with this alone. Most were charged with other federal felonies.

The remainder were charged with other misdemeanors, with misdemeanors. And so there's really there's about 249 at this point that, that have not been resolved using other statutes, and and of those, only 52 are where 1512(c)(2) is the only felony, and of those, only 27 are currently still in incarceration.

The stakes are not enormous. It's a symbolic victory for the defendants and it's a symbolic blow for Merrick Garland and his DOJ. The issue all along has been that 1512(c)(2)'s structure, it's two sections and (2) is the second section. So it's whoever corruptly one, alters, destroys, mutilates, or conceals a record, document, or other object dot, with intent to impair its integrity or availability for use in an official proceeding, or two, which is the one that's being used, otherwise obstructs, influences, or impedes any official proceeding or attempts to do it has a 20 year potential penalty, so it's a very significant felony. And so the DOJ read it pretty literally. I mean, pretty the most obvious reading it said, whoever corruptly dot dot dot obstructs influences or impedes any official proceeding violates the statute. And that's what most district judges, in fact, every federal district judge in Washington held until Judge Nichols, Carl Nichols.

In fact, that's 21 federal district judges, a lot of them Republicans, a number of them Trump appointees. But Judge Nichols interpreted it separately. He said you really, you needed to interpret that second clause in light of the first clause that the second clause begins with an otherwise. And he's saying so you look back to that first clause, alters, destroys and mutilates records, documents and objects.

So this must be otherwise doing something with respect to a document, record, or other object. So he dismissed the charges against, in succession, three of the defendants, eventually including Fischer. That went to the D. C. Circuit. The D. C. Circuit actually upheld what the DOJ was doing in a split decision but Judge Katsas, Gregory Katsas, dissented.

And he gave it an interpretation that was slightly broader than Nichols, but nowhere near as broad as the DOJ and said it should only apply to acts that affect the integrity or availability of evidence. And then we got to the Supreme Court and it's a 6 -3 ruling with Chief Justice writing the majority opinion and it's very close to the Katsas outcome.

The new formulation is you have to, the defendant must impair the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in the proceeding. And that examples of how does that differ then from (c)(1)? And he says. It can include things like, importantly, creating false evidence rather than altering evidence.

It could also mean impairing the availability or integrity of other things for use in official proceedings beyond records, documents, or objects such as witness testimony or intangible effort information. And so that's his ruling. Ketanji Brown Jackson has a separate concurrence. She joins the main opinion.

Some of her reasoning is not what orthodox conservatives use. She uses some legislative history. But the big difference is that she goes a step further. Because all along when Nichols first dismissed the case and gave it this very narrow ruling, Justice said, well, I mean, even under your interpretation, having to do with where it's got to be, have something to do with a record or document or object, the January 6th proceeding involved electoral certificates that are collected and counted. That's the whole point of the proceeding. And so Justice used that as a backup argument and Nichols rejected it with his very narrow. So now we're at a stage where the definition is a little broader and the question arises, well, does the DOJ's fallback argument work?

Even for these January 6th people. And, Ketanji Brown Jackson goes there and says it does. Or she says it may well. Those cases may well be able to go forward on that fallback theory. The majority doesn't say one way or the other, although it also doesn't merely reverse. It reverses and remands. And tells the D. C. Circuit to proceed, based on the new definition, and presumably they will send it back to Nichols to decide whether that fallback position applies. And then there were the three dissenters and Justice Barrett wrote the opinion and everyone the the other two, Sotomayor and Kagan joined it.

And it's a very, very workmanlike very convincing in my humble opinion, if you take seriously these textualist arguments, she shows that there's a very strong argument that Justice Roberts is misusing some statutory canons that in a situation where they don't apply.

And she basically said, DOJ had it right. The majority quote, simply cannot believe that Congress meant what it said and that it does quote, textual backflips to find some way. Anyway, to narrow the reach of section subsection (c)(2).

Benjamin Wittes: Alright, so I'm interested in bringing this down to the brass tacks level of the individual cases.

But before we do that, I wanna focus for a moment for further on the doctrinal aspects. The distinction between the two, the majority and the dissent seems to be that the majority takes the view that there has to be some nexus to the availability of documents, and the dissent says no, otherwise really means otherwise, and (c)(2) is divorced from, (c)(1) is about documents, (c)(2) is kind of about anything else.

And my question is, in an environment in which the issue is, are you storming the Capitol to obstruct a proceeding, or are you storming the Capitol to obstruct a proceeding and prevent them from certifying, counting electors, which are electoral votes, which are documents? What's the difference between, and Ketanji Brown Jackson sort of says, I don't think there is a difference.

That's the, but I'm trying to figure out whether anything actually turns on, I see in Nichols's case, you know, if you haven't shredded a document or done something with a document, you're not in the ambit of the statute, but as the majority articulates it here, I'm not sure that this isn't a distinction without a difference, at least as applied to January 6th.

And so I'm trying to figure out does this simply require that a bunch of charges be repled to say the words 'and documents,' or is there some meaningful distinction between the requirements, of obstructing a proceeding with documents, which is the majority's position, or obstructing a proceeding with no documents?

Roger Parloff: Yeah, that's the key remaining question, I think. It will go back to Nichols, and I suspect, you know, I don't know, maybe, it's, it is a broader theory than his own, so I don't know how he'll react. The first statute is talking about destroying documents. I mean, the first subsection, destroying documents with intent to impair the integrity or integrity or availability at an official proceeding.

And the second subsection is about obstructing the proceeding itself. And so that's how DOJ obviously saw it. That's how Justice Barrett reads it. And so I think it's still possible for Nichols to rule. No, it has to be about impairing evidence. And the goal was to stop the whole proceeding. And, I mean, you're right, part of the proceeding involved documents.

But it wasn't to destroy the documents, alter the documents spoliate them, change their evidentiary value. So I think it's going to hinge on to what degree he thinks this has to be about impairing the, their evidentiary integrity. Interestingly enough, that phrase, impairing the availability or integrity of evidence was Katsas phrase. They don't use that phrase.

Benjamin Wittes: And importantly, it's not limited to evidence.

Roger Parloff: Right. Very important. Very important.

Benjamin Wittes: But I am actually tempted by the idea that DOJ wins here by losing. So here is how Chief Justice Roberts, for a majority that includes Clarence Thomas and Sam Alito, by the way, characterizes the rule.

To prove a violation of 1512(c), the government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or, as we earlier explained, other things used in that proceeding or attempted to do so. So it is enough if you're, say, storming the Capitol to stop a proceeding of counting electoral votes, which are not evidence, but they are other things, that you attempted to impair the availability of electoral certifications used in a proceeding.

And so I don't see how anybody who could be charged with obstructing the proceeding in the government sense, at least in the January 6th context, couldn't be charged under Roberts's formulation this way. I mean, again, it would require repleading a whole lot of cases.

Roger Parloff: I don't think it even requires repleading because with no displeading, you just need to basically recite the statute, and they have recited the statute. I think they're okay there. But, you're right. I think there's a fighting chance here that all of these cases survive. Except for the ones before Judge Nichols.

Benjamin Wittes: And if the government is foolish enough to indict any January 6-ers before Judge Aileen Cannon, don't count on her to I'm joking, of course.

Roger Parloff: Also, there's one thing that, there are dogs that didn't bark here. There are things they did not say, and that they were invited to say by the defendants. And Fischer in particular, you know, he had an argument, this all revolves around the integrity of evidence, and as a result, it only applies to official proceedings.

That involve evidence, evidence taking, and that could be a congressional proceeding, but only those that take evidence. Like an investigative, you know, a fact finding type committee meeting or, you know, like the January 6th committee. It would not include in their view a joint session of Congress, which they would characterize as a ministerial thing where you just count votes.

So there was nothing about that and the final formulation didn't use the word evidence. So all of that is very good for DOJ and I think it's very good for the special counsel's office.

Benjamin Wittes: Yeah, so we're going to get to the special counsel's office and one case that this has charged two counts, which is Donald Trump's case.

Before we do that, I just want to talk about the other 340 cases, which you alluded to. This was, after oral argument expected to be a kind of a disaster for those cases. I think it is something substantially less than a disaster. And I just want to, you divided up the cases in one way, but I want to try to work with you to divide the cases up in a somewhat different way, which is, if you've pled to this, of course, pleading partly is waiving a right to appeal, but then the Supreme Court says actually the theory on which the government indicted you is wrong.

They're reading the law wrong. What happens to the majority of those 340 people whose plea agreements include some 1512(c) violation?

Roger Parloff: So, nothing happens until they move. So they need to go to court and say they want something done. A lot of those people are out of the system. So, and a lot of them resolve their cases on other grounds.

Those that didn't need to ask themselves if it's worth it to go back into the system. Those that pled guilty and want to say, and most did waive their appeals, they need to worry about, oh, so do you want to take back your plea? And then we decide what to do from there. Because even though, because things can get worse even though you can't be, there can't be retribution and you have certain rights that way.

Benjamin Wittes: Most people got a benefit by pleading, right? You withdraw your plea, you may lose the benefit.

Roger Parloff: Yeah, yes. And in addition, what we've seen is that the more time you give DOJ to pour over the videotape, the more likelihood they can find you assaulting a police officer you know, which maybe they didn't the first time around and that's what happened to Zach Rehl, a Proud Boy, not in this context. In this, sort of this context, there was a misdemeanor case Class B in front of, minor petty misdemeanor in front of Royce Lamberth, and he challenged it because it was two months of incarceration and X number of years of probation. And he said, you can't have a split sentence for a B misdemeanor, and he won that.

And he had, of course, long since served his two months, and Royce Lamberth, he went back to his first sentencing. Royce Lamberth gave him four months, so you go back in, and he gave him four months because there was no longer probation to supervise him, and he had a long record of not being no, of no, the opposite of contrition and then and a lot of lies, over, about the political hostages and that sort of thing.

Benjamin Wittes: So you may have good reasons not to open up the can of worms of your case. So of the 340 people, how many of them are plea agreements that are resolved that you would have to reopen.

Roger Parloff: I don't know that. The other thing is that, is this going to affect your sentencing? So what we really want to look at are the subset of people where this was the only felony.

And there's only 52 of those. And 25 of them are through the system. So they're going to have to say, do I really want to get back into this crazy system?

Benjamin Wittes: And then there are a group of people, it seems to me, where it has the most obvious effect is where you have a group of people who, Joseph Fischer, who have not yet been tried.

Right, and so then you get into the government has to ask then the question, whereas before, can we prove it under our standard, under the D. C. Circuit standard, now they have to ask, can we prove using our evidence under the Roberts standard, and that seems to me to be a situation where you might see some charges dropped, or depending on how these, how the government interprets, whether they agree with my instinct that this may be a distinction without a difference in the context of January 6th, you may just have no effect at all, right?

Roger Parloff: Yeah, and meanwhile, while all of this was pending, a few months back, the picture also changed because of an unrelated ruling. For most of this period, if you were convicted of multiple felonies, including 1512(c)(2), 1512(c)(2) was the one that would drive the sentencing guidelines.

It was the most weighty because you had likely triggered some enhancing provisions. You had obstructed the administration of justice, which is a sentencing guidelines thing beyond the statute. And then there was a ruling that overturned that sentencing guidelines interpretation. And so now, as a result of all of this, what was often happening is that the sentencing guidelines were very high, and then almost invariably the judges would come down below the sentencing guidelines.

Now, without 1512(c)(2) driving the bus, even before Fischer, because of this earlier ruling, which is called Brock, the other felonies take the lead role and like assaulting police officers. In addition, the judge is still going to try to make all of the sentences consistent over time. So, you're probably going to get the same sentences.

You won't have a variance downward, you'll get right in your guidelines or maybe toward the top. I think it's not going to make a huge difference. There are going to be some people, you know, there are already are 10 to 20 who have already been, after oral argument who were released from prison because of the possibility that resentencing would.

These were mainly people with just one felony. And very likely that if that one goes away their sentence will go away. Even those, there's theoretically the possibility of somebody trying to give consecutive sentences on the misdemeanors, but that's rare. And it would probably really take a bad actor that earned some sort of special treatment.

Benjamin Wittes: All right, let's turn to the one January 6th defendant I think everybody is most particularly interested in. First of all, Quinta, give us a reminder about what role 1512(c) plays in the January 6th indictment of Donald Trump, which I will remind everyone is frozen until Monday, when we expect to get the immunity decision that should unlock it in some form.

And so when that unlocks, there is a four count indictment of which two are these counts. What are the role that this is playing in the January 6th indictment of Donald Trump?

Quinta Jurecic: Thanks, Ben. So yeah, so as you say, there are four accounts in the indictment of Trump in the federal January 6 case. Three of them are conspiracy statutes.

Two of them are unrelated to this particular statute that we're discussing here. So those first unrelated to are Yeah. 18 U. S. C. 371, which is the general conspiracy to defraud the United States statute, and then section 241, conspiracy against rights, which is a post Civil War era sort of civil rights protection statute that is usually used in voting rights cases or ballot, ballot access, tampering with ballots, that kind of thing.

Then the other two counts, so there is one count that is conspiracy to obstruct an official proceeding, so that's section 1512(k). And then we have good old section 1512(c)(2) which is obstruction of and attempt to obstruct an official proceeding. This statute is very much, woven into the story that the special counsel is telling in this indictment, but it is not, the only thing on which the indictment rests, which I think is important going in to understand, you know, how I think it's fair to say I don't want to speak for the two of you, Ben and Roger, but we were thinking about Fischer in relation to the Trump indictment that Fischer could potentially be important, but it wasn't necessarily going to be, you know, dispositive one way or another because there are those other two counts.

That said those two counts are important. They're sort of part of this broad argument that the special counsel is making about a prolonged effort over a period of many months that Trump made to overturn the election results culminating the Justice Department alleges on January 6th.

And so in this case, as in the other, the sort of the bulk of the January 6th cases, what we've, I know, I think Roger, you've sometimes called the blue collar January 6th cases, the people who actually, broke into the Capitol. Again, it's the same official proceeding. It's the electoral count at Congress that was disrupted.

I think the really important thing here is that in Trump's case, there is a much more direct connection to actual documents that are at issue, those documents being the fraudulent electoral certificates. So just to back up a little bit because this is, there are a lot of different moving pieces here.

The special counsel's allegations in the indictment essentially is arguing that Trump tried a range of strategies to overturn the 2020 vote. One of those strategies was this scheme to basically create faux, alternative, whatever you want to call them, slates of electors, essentially have the electors who would have put together the electoral certificate had Trump won, have them basically sign a fake certificate or an alternative certificate saying we are the duly elected electors of this state and we were voting for Trump and then send that to Washington D. C. to be treated as if it was real. Key to that was this idea that the plan took various manifestations, but essentially those certificates would be passed to Vice President Mike Pence presiding over the Senate and would allow Pence to either say, would you look at this? I have some electors who say that they voted for Trump.

He's won the election. There we go. Or say, gosh, it seems like there's a lot of controversy here. We better throw this to the House of Representatives. Or, gosh, there's a lot of controversy, we'd better throw this to the state, but, or to the state legislatures. But the key is that it's the creation of these sort of fake certificates that is the really the key mechanism that sort of allows everything else to unspool in terms of the plan to stall out the formal electoral count in Congress.

And then again, according to the indictment, the effort to sort of egg on rioters as they were headed toward the Capitol and refusing to call them off, the special counsel positions that also, as part of the obstruction of an official proceeding, in that Trump was attempting to essentially threaten Pence with violence to get him back on the team and try to get him to, again, point to those certificates and upend the electoral count in some form.

Benjamin Wittes: So when you read the opinion today, Quinta, and here the relevant opinions are only the majority opinion and Justice Jackson's concurrence. Did it seem to be aware of the Trump indictment? Are there cues to how the court might think about the Trump indictment or language that Judge Chutkan will be looking at in Fischer to figure out how, whether she can proceed on those counts, or is it written all with kind of blissful ignorance of the coming trial of the former president, which, of course, case is also before the court on the immunity question.

Quinta Jurecic: I think it's the sort of first obvious reference, or hints in my mind that sort of, you know, blaring from the rooftops is really in Justice Jackson's concurrence, where she has that passage that we were addressing previously, where she says, hey, we can kind of move these prosecutions forward, you know, here's an alternative route.

But I do think that if you read the majority opinion by Chief Justice Roberts, there are some pretty clear indications that, he was thinking carefully about what this might mean in context of the Trump indictment. So for example, there is as we've, we've mentioned this instance where Roberts suggests, for example, it's possible to violate (c)(2) by creating false evidence rather than altering incriminating evidence.

And the example that he uses is a case in the Second Circuit that involves somebody who very cleverly made, forged a court order from a magistrate judge and faxed it to the opposing party. And you'll be shocked to hear that that didn't work out very well.

Benjamin Wittes: Yeah, do not try this at home, kids.

Quinta Jurecic: Yeah, because then the opposing party sent it to the judge and said, did you write this? So don't do that. But I think that's, that's an, an excellent example, right? It's creating a fraudulent document that's purporting to be an official document. And in my mind I think that meshes very well with the indictment, particularly because there's actually specific language in the indictment that seems very similar.

So one of the paragraphs in the indictment describing, alleging Trump's actions says that, the plan to use the fake electors was, and I quote, to marshal individuals who would have served as the defendant's electors, had he won the popular vote in seven targeted states. And cause those individuals to make and send to the Vice President and Congress false certifications that they were legitimate electors.

So that's alleging that Trump caused the production of false evidence. That feels to me very, very direct. It's also the case that the indictment says again and again that the creation of these false records or these false certificates was directly related to these efforts to disrupt Congress. One point the indictment describes a plan that, and I quote, on January 6th, the vice president should open and count the fraudulent votes, setting up a fake controversy that would derail the proper certification of Biden as president- elect.

Again, that sounds a lot like obstructing an official proceeding. There's a line where Jack Smith describes Trump, and I quote, directing the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the vice president to fraudulently obstruct the certification.

There's a point where the indictment describes the White House counsel calling Trump to ask him to basically tell senators to withdraw objections which again were made on the basis of the fake certificates and allow the certification to, to continue. The defendant refused. So I think if you read the Roberts opinion alongside the indictment, it is pretty clear to me, you know, if Judge Chutkan is looking at this, preparing for whatever might happen on Monday when we get the immunity decision. There's a pretty clear roadmap, and if I were Jack Smith, I would not be, I would not have a lot of heartburn about what this meant for my case.

Benjamin Wittes: Do you agree with that, Roger, or are there landmines here that, for Jack Smith, that Quinta is missing?

Roger Parloff: I agree with Quinta, and I think Judge Chutkan will see it this way, and there won't be an interlocutory appeal. There will be an argument. Trump's argument will be, the best argument would be, the one that Fischer himself made which is that this whole proceeding, the joint session of Congress, isn't an evidentiary proceeding.

It's a ministerial proceeding. So even though 1512(c)(2) mentions that congressional proceedings can be official proceedings, they would argue that this particular official proceeding doesn't count because this isn't true evidence. This is, this evidence is stuff that you present to a court or to a tribunal or to a fact finding body, not somebody that, a body that convenes to count.

But I do think Judge Chutkan will agree with Quinta and, for what it's worth, so would I, but and I think the important thing is it can't be appealed until after somebody's convicted.

Benjamin Wittes: I also agree with Quinta and I want to push a step further and say that from everything both of you say, it looks to me like Roberts's motivation here was to tether this to documents, which he wanted to do for whatever, I mean, he has a longstanding commitment to interpreting white collar criminal statutes relatively narrowly. See the decision the other day. He wants to tether it to documents, but he wants to have minimal impact on these cases.

And so he seems to have done it in a way that affects the broad body of cases. less than Roger, you and I expected and affects the Trump case, not at all. And so I'm interested Quinta first, and then Roger, is this from the justice department's point of view, a great way to lose a case?

Quinta Jurecic: I'm also interested in Roger's thoughts given that he's been following this a lot more closely than I have.

I, my instinct is yes, that this is shy of actually winning that this is pretty much as good a loss as DOJ could have hoped for, particularly because of a couple things. I think what it may portend in terms of immunity, I don't want to get too far out ahead of my skis, but I do think that it is notable that if you read Roberts, who seems, in my view, to be really trying to preserve the Trump indictment.

You take Roberts you take Justice Jackson, who, again, also seems to be very conscious of the sort of importance of potentially preserving these January 6th prosecutions, and then you take Barrett and the two other liberals in dissents, you've just counted to five, and that's five justices who are potentially, in line with moving forward on a Trump prosecution when it comes to immunity as well.

So I think that is notable. I mean, I suppose one, one way to read this is that there's a kind of, the court is coming at this with a bunch, from a bunch of different angles. And one is this sort of, animating importance of, responding to January 6, which I think is more apparent in some of these decisions than others.

So like we've said Roberts really does not address this head on in any way whatsoever. There's one like very short reference to sort of an attack on the Capitol and then he kind of moves into this, bone dry statutory interpretation. But I think he is conscious of the importance of moving forward as we've discussed.

Justice Jackson addresses not in significant length, what happened on the 6th and I think in Justice Barrett's dissent as well, actually, there's some material in the first few paragraphs of her decision that speaks to real alarm about what happened on the 6th and the need to have statutes that can be flexible and broadly interpreted to respond to disasters like that.

So that's on the one hand. On the other hand, the court has. been engaged in a very long project at this point the Roberts court, I should say, of sort of tightening up statutes for white collar cases that strike them as overly broad. And I think you, you see that in a number of instances. We saw it recently in a Snyder case that came down earlier this week that had to do with tightening up prohibition, you know, the distinction between accepting a bribe versus a gratuity.

Benjamin Wittes: And that's part of a long chain of cases, most of which have been unanimous.

Quinta Jurecic: Exactly. And so in Snyder, Snyder the liberals dissented, but most of these cases have been unanimous. And so I wonder whether what you're seeing here is this kind of, unstoppable force versus immovable object in a sense where the justices don't like January 6th, but they also don't like vague white collar statutes.

And so there's a mixing and matching trying to figure out which way to go here. And I think we've ended up with a result that sort of makes everyone and no one happy, maybe but from my perspective, if I were sitting in the Justice Department, it seems to me to be a decent outcome.

Benjamin Wittes: Roger, if you're Merrick Garland, are you happy today? You're like we knew we were going to lose this one. This is the best way to lose. And we get to, you know, fight another day or are you annoyed because a statute with perfectly plain meaning according to Amy Coney Barrett and your solicitor general has been interpreted not to mean what it says.

Roger Parloff: I think they're disappointed but relieved. It could have been worse. I think they, probably held out hope that they would still win outright And it's a symbolic loss, and the other side in these things takes those symbolic wins and runs with them. You saw like the Mueller report, what, Bill Barr and Trump, declared what, gave their interpretation of what it meant, and now it's Russia hoax, Russia hoax, Russia hoax.

And this is a, this will be, you know, thrown in Merrick Garland's face as a big loss, even though it's not a big loss. And as you say, we might even not lose any of these cases, but I'm sure they're disappointed. He said he was disappointed. He gave a statement. Even at the symbolic level, these cases, assaulting police officers is a serious crime. It happens, often, every day I don't know if every day, but probably nationally every day. What happened on January 6th is unusual, and it's not entering and remaining in a restricted zone. You know, that's trespassing, that's offensive to say that's all this is. They only used it when they had evidence that people were plotting in advance on their social media. They were saying, I'm going to disrupt this proceeding. I'm going to, you know, pull people out by their hair. I'm going to kill them. We're going to stop this thing. They may, they took pictures of themselves doing it. They bragged about it afterwards. They entered the place. They penetrated pretty far.

And very often, I mean, very often there were additional crimes. If there weren't, very often there were things that I was often confused. Why weren't, why wasn't he charged with impeding for, there were interactions with police officers that were pretty rough. There isn't another crime that's appropriate, another felony crime.

That's a, and certainly not the misdemeanors. It's offensive to call, to, to use those other, there, there's another obstruction charge called harassment. It wasn't harassment, so yeah, at a symbolic level, I think it's unfortunate.

Quinta Jurecic: One very quick point. I do think that to Justice Barrett's dissent, where she points out, Congress couldn't possibly have anticipated that something like January 6th would happen, she writes that almost verbatim.

I think that is a really important point for just understanding how these cases are being prosecuted. Some of these statutes are being used in weird ways. We also see that with the conspiracy against rights statute in the Trump indictment, just because nothing like this has ever happened.

There's not a clear way to charge it because it never happened before. And I think that really diverges from, for example, the Mar a Lago case or the New York case, where there is a super clear set of charges that are used all the time because the conduct there is, relatively common, although there are some sort of particular, baroque twists and turns because Trump is the person doing it.

Benjamin Wittes: That is a great lead in to my last question, which is whether there are any tea leaves to read for the immunity case from this one. I will just throw two hypotheses out there and then give you both a chance to address them and add to them whatever you want. First of all, I don't believe that Amy Coney Barrett writes the opinion that she wrote in dissent if she's going to turn around on Monday and say, never mind, the president is immune from criminal charges.

I think she laid her cards on the table about January 6th, and I think she really tipped her hand about how she's voting on immunity, though not in the sense that you couldn't intellectually reconcile it, just in the sense that you would have written this opinion very differently if that were the case.

Secondly, I don't think, to go back to Quinta's point about the Chief tailoring this opinion very much with Trump in mind. If he were planning to issue an opinion on Monday that says, by the way, the president's immune, you don't need to tailor this opinion to that. So I want to throw out there that you can read tea leaves on two conservative justices for the proposition that this trial is going to be able to go forward.

Roger then Quinta, discuss.

Roger Parloff: Well, what you say is convincing. I hadn't independently thought of those things, and as I was reading it, I wasn't trying to foresee how it would come out. So I'll just pass it right on to Quinta.

Quinta Jurecic: Yeah, I mean, look, we'll find out what the answer is in less than 72 hours.

But I do, I'm inclined to agree with you. I don't see a world in which particularly Barrett and particularly Roberts make these rulings in this way and then turn around and say, no, no prosecution for you. Particularly also because, Roberts can choose to assign the opinions when, when he's in the majority and he chose to take this one.

I think that the smart money is probably on him writing the immunity one as well, just because that's, the thing that you would want the Chief to do. That's a big case for the institutional legitimacy of the court. And It would make a lot of sense to me if these kind of come out as a pair.

But again, if you're listening to this on Monday afternoon, we may be totally wrong and you're laughing at me right now. Who knows?

Benjamin Wittes: Hey, you may be listening to this as we are recording a broadcast about the Supreme Court holding that there is absolute presidential immunity. Roger Parloff, Quinta Jurecic, thank you both for joining us today.

Roger Parloff: Thank you for having me.

Quinta Jurecic: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfaremedia.org slash support. You'll also get access to special events and other content available only to our supporters.

Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Chatter, Allies, and The Aftermath, our latest Lawfare Presents podcast series on the government's response to January 6th and check out our written work at lawfaremedia.org. The podcast is edited by Jen Patja and your audio engineer this episode was Anna Hickey of Lawfare. Our theme song is from Alibi Music. As always, thanks for listening.