How Will SCOTUS Rule On Donald Trump’s Jan. 6. Legal Case?

CHRISTIANE AMANPOUR, INTERNATIONAL HOST: Now, to the U.S. Supreme Court, where the justices are facing several landmark cases. While their approval ratings remain at record lows from the trials awaiting Donald Trump to a vital reproductive rights decision. Professor of law, Stephen Vladeck joins Hari Sreenivasan to discuss the cases attracting attention and whether we’re witnessing a constitutional crisis in the nation’s highest court.

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HARI SREENIVASAN, INTERNATIONAL CORRESPONDENT: Christiane, thanks. Stephen Vladeck, thanks so much for joining us. A couple of big announcements in what the Supreme Court would be working on that kind of come back to the 2020 election. So, I guess to just get our audience up to speed, what were the significant cases?

STEPHEN VLADECK, CONTRIBUTOR: Sure. So, two developments. One was in the prosecution of Former President Trump in Washington, D.C. arising out of January 6th, where the special counsel, Jack Smith, asked the Supreme Court to not only leapfrog the Federal Court of Appeals, but to move very quickly to leapfrog the Court of Appeals in resolving President Trump’s claim that he is immune from prosecution both because he was acquitted in his second Senate impeachment trial and because the actions he took leading up to January 6th were actions he took in his official capacity as president. Judge Chutkan, who’s presiding over that trial in Washington, had rejected those claims, and Jack Smith is now asking the Supreme Court to sort of decide very quickly whether Judge Chutkan was right. The court has not agreed to take up the case yet, but it ordered President Trump to respond by this Wednesday and could decide as early as this week, whether it’s going to hear the case, not just this term, Hari, but actually perhaps as early as January.

SREENIVASAN: So, let’s put that in context for people. There is this sort of route where you can basically ask the court to skip the official process. How often does that get used? And in what kind of circumstances?

VLADECK: Yes. So, historically, it was quite rare. The Supreme Court has had this power. The technical term is certiorari before judgment, meaning before judgment in the Court of Appeals. Since 1925 and up to 2019 it hadn’t happened that often. I mean, it was major separation of powers cases that also had a ticking clock. So, the Military Commission trial of Nazi saboteurs during World War II, President Truman’s seizure of steel mills during the Korean War, the Watergate tapes case with President Nixon, the Iranian hostage crisis. Maybe Hari, there’s debate about whether this case fits into those precedents. But since 2019, the Supreme Court has actually been much more willing to leapfrog Courts of Appeals in this respect. The court has granted cert before judgment 19 times in the last four and a half years, after only granting it 30 times in the previous 94. And so, you know, I think against that backdrop, this case really is hard to distinguish. At least from the more recent examples of really important issues where the Supreme Court knows it’s going to want to decide the matter eventually, probably doesn’t need that much help from the Court of Appeal to figure out what the issues are, and where there’s at least some argument that deciding it sooner rather than later will have some public benefit.

SREENIVASAN: I mean, does this inherently make this political if Prosecutor Jack Smith wants to say, hey, Supreme Court, you have to figure out whether this applies to the president or not? I mean, that will have an impact on whether or not he could have, say, good standing in the Republican Party to be the nominee?

VLADECK: I think that’s right, Hari, but I think once Jack Smith made the decision to indict President Trump, especially on these charges, especially on charges that really dovetail with conduct while he was president, which distinguishes it, for example, from the Mar-a-Lago case, I think this was inevitable. And, you know, the notion that the Supreme Court is going to weigh in at least on this pure legal question of whether a former president can be prosecuted for acts he undertook while he was president. I think in retrospect, it’s not surprising that the Supreme Court would be interested in that question. And so, I think now it’s just a matter of should the court decide this now or later? And the arguments for later aren’t especially compelling. You know, we’ll see. I mean, the court may yet say, we’re going to wait for the Court of Appeals. Hari, as you know, the Court of Appeals itself is moving very quickly. So, that if the Supreme Court sits back, we’re probably going to have a decision from the Court of Appeals within the next six to eight weeks. So, you know, I think it’s just a question of when the Supreme Court steps in, not if. It could be as early as this week, it could be, you know, when the Court of Appeals rules, January, February. Either way, I think this issue is going to get resolved maybe not by the March 4th trial date that Judge Chutkan had preliminarily set, but early enough that if the court says no, Former President Trump is not immune, I think there’s still be plenty of time for the trial to go ahead before the election.

SREENIVASAN: OK. let’s talk about another case here, Fisher v. United States. What’s at stake?

VLADECK: Yes. So, you know, one of the — the Trump case is the first example of January 6th, got into the Supreme Court. Fisher is the second. So, last week two days after the court hustled, granted Jack Smith’s motion to expedite consideration of that Jack’s — of the Trump case, the court agreed to take up a very technical question about the scope of the federal criminal obstruction statute that has been used, Hari, in over 300 of the January 6th prosecutions. Fisher is one of the January 6th defendants. He was convicted among — or he was indicted among other things of violating this general obstruction of official proceedings statute, and he had argued in the lower court, he and two other January 6th defendants had persuaded a trial judge, Judge Carl Nichols, that this general obstruction statute actually required a more specific act. It required that the obstruction not just be of a proceeding in general, like the joint session to count the electoral votes, but that the obstruction actually impede the proceeding in some way related to evidence. And this was based on a reading of the relevant statutory provision compared to the one next to it. Judge Nichols accepted this argument. The Federal Appeals Court in D.C. rejected this argument by a two to one vote with Judge Greg Katsas, a Trump nominee, agreeing with Nichols and saying, he thinks the statute requires a more specific, what’s called actus reus. And the Supreme Court agreed to take up that question. So, you know, for hundreds of January 6th defendants, there’s now a question before the Supreme Court about whether the government’s interpretation of the obstruction statute was too general and whether the government actually should have had to show more than just interference with the joint session. But actually, some way in which the defendants’ acts deprive the joint session of certain types of evidence or other documents that it would have needed to do its job.

SREENIVASAN: Wow. So, I mean, this kind of defies common sense here, right? If you — so, from the outside looking in, the argument says that obstructing the meeting of Congress to certify the election is not enough. I mean, did they have to have like stolen a piece of paper? I mean, how specific do you have to be in obstructing the flow of Congress here?

VLADECK: So, I mean, we should be clear, this an argument about the language of this one very specific federal criminal statute that was, you know, modified after the Sarbanes Oxley accounting scandals back in 2002. I think that the short version is, yes, the argument that Judge Katsas and Judge Nichols embraced requires some fairly specific misconduct. What we should stress is most of the January 6th defendants were also charged with other offenses, right? That the cases in which the only charge was this statute usually were cases where defendants agreed to plead guilty to this statute in exchange for dropping other charges. So, there are very few of the January 6th cases that rise and fall on this statute alone, but there’s still the problem that now one of the more common theories that federal prosecutors have used to try January 6th defendants has the interest of the Supreme Court. Hari, in a context in which there’s no circuit split, in a context in which even in these cases, in Fisher, it’s what’s called an interlocutory appeal, Fisher has not been tried yet, right? Judge Nichols had dismissed his indictment. The federal government had appealed. So, you know, I think what’s really tricky about this case is it looks like the Supreme Court is interested, perhaps in narrowing this charge, a charge that has been very, very widespread in the January 6th cases. Hari, a charge that’s in the indictment against Former President Trump. Now, the irony of Trump here is that even on the narrower — what’s called evidence impairment reading of the statute, it’s a pretty good argument that Trump actually meets that too, because the allegations against Former President Trump are that he was actively aware of and involved in the plot to generate these false electors, right, that’s evidence. And, you know, provided in the joint session with false documentation, I think would come much closer to even how Judge Katsas interprets the statute. So, we have this problem where Fisher could have massive ramifications for some of the lower-level January 6th defendants were actually the top-level defendants, President Trump, Stewart Rhodes, the leaders of the Oath Keepers, you know, are dead to rights or at least accused of statutes with clearer pathways to success.

SREENIVASAN: Got it. Now, speaking of Trump, and not necessarily in the context of the Supreme Court, but we had a conversation on this program a while back about a case in Colorado that is working its way to the Colorado Supreme Court now about whether or not President Trump — Former President Trump should be allowed to be on the ballot.

VLADECK: That’s right. And so, these are — there’ve been a couple of these cases. The Colorado one is the one that I think, right now, is getting the most attention, relying on Section 3 of the 14th Amendment. And Section 3 of the 14th Amendment was a provision adopted right after the civil war that purports to disqualify from holding any federal office those who engaged insurrection. The provision does not say those who engaged in the civil war, right, it’s insurrection generically. And there have been arguments, including the decision by the trial judge in the Colorado case that President Trump’s conduct before and on January 6th satisfy that substantive definition of insurrection. If that’s true, and if President Trump is the kind of officer to whom Section 3 refers, then he is arguably ineligible to be on the ballot for president in the first place. So far, no court has disqualified President Trump as we’re sitting here, you know, chatting. The trial court in Colorado said, yes, President Trump had engaged insurrection, but he was not the kind of officer who was supposed to be disqualified by Section 3. The Colorado Supreme Court is set to rule perhaps any day now. And I think there’s a really big question about whether the U.S. Supreme Court would feel impelled to step in. My — you know, my best guess, and it’s only a guess, is that the Supreme Court would love to stay away from this case, but that if some lower court purports to disqualify Former President Trump from sitting on the ballot, I think the U.S. Supreme Court would feel obliged to step in. And right from the Supreme Court’s perspective, that’s a sticky wicket, because if you do disqualify Former President Trump, then you’re the one preventing him from running for re-election, not — right — you’re — not the people. If you don’t disqualify Former President Trump, then Former President Trump will surely point to that decision, even if it’s on technical grounds, as some kind of exoneration, if not endorsement. And so, I think this why if I’m the U.S. Supreme Court, I’m hoping against hope that no one puts me in that position and no one sort of forces me to take up that issue. Because otherwise, I think they’d have to take that pretty quickly as well.

SREENIVASAN: Now, there are other cases that are pretty fascinating and important to a lot of people that the Supreme Court said it was going to take up. One is the first kind of major challenge last week since it struck down Roe v. Wade, and that is whether or not, you know, access to abortion through the drug Mifepristone was going to be legal or not. Tell us a little bit about this case.

VLADECK: Yes. I mean, so this a case that’s gotten a lot of attention for and deservedly so. Back in April, a federal judge here in Texas, in Amarillo, issued this really stunning ruling that purported to vacate not just recent decisions by the FDA to expand access to Mifepristone, which is, you know, one of the two drugs used in the most common form of medicinal abortion, but actually, he went back and said, even the original approval of Mifepristone way back in 2000 was unlawful. And, Hari, if that decision had gone into effect, it would have had nationwide consequences for access to Mifepristone, even in states in which abortion is legal. I mean, like far — you know, even in the bluest of blue states when it comes to abortion. In April, the Supreme Court actually put that ruling on hold with only to justice publicly dissent him. And, you know, I think the sort of the hope was that that was a signal from the Supreme Court that it didn’t give this case ought to go forward. That it thought there were problems with the case. That message was not received by the Federal Appeals Court for the Fifth Circuit, the Appeals Court that covers Texas, Louisiana, Mississippi, because earlier this summer, the Fifth Circuit reached the merits of Judge Kaczmarek’s ruling and left a good chunk of it intact. So, there’s — you know, you have these conflicting rulings where the Supreme Court has said everything is frozen, access to Mifepristone remains as it was, and you have the Fifth Circuit saying, OK, but we think that when this case is finally resolved, at least the recent expansions of access to Mifepristone should be invalidated. And so, the Supreme Court has now agreed to take up the appeal from that decision by the federal government and by Danco Laboratories, which is the principal sponsor of Mifepristone in the United States. You know, Hari, I think a lot of folks look at this case and say, oh, no, here comes the Supreme Court to mess with abortion again. I have a slightly different take, which is, here comes the Supreme Court, I think, to slap down the Court of Appeals. And I think the best evidence of that is it’s very technical, but when the Supreme Court agreed to take up the Biden administration’s appeal and Danco Laboratories’ appeal, it refused to take up a cross appeal by the plaintiffs, by the Alliance for Hippocratic Medicine, the group that had brought this case in the first place. The Alliance for Hippocratic Medicine had said, hey, Supreme Court, if you’re going to take up the government’s appeal, we also want to challenge that part of the Fifth Circuit decision we lost on. We want you to actually look at all of the FDA’s approvals of Mifepristone going all the way back to 2000. And the Supreme Court, in its order, agreeing to hear these appeals didn’t take up this part of it, which, Hari, says to me, the justices have no interest in going back to 2000.

SREENIVASAN: You know, just stepping back from the decisions, what about the behavior of the court itself? That has come into question by huge swaths of the public as their confidence in the Supreme Court seems to erode. The court tried to publish a new ethics code. You came out critical of that code, saying it didn’t go far enough. Explain.

VLADECK: So, I think two things are true. One, the fact that the justices issued this code of conduct back in November is a remarkable development. You know, that the court actually felt the need to at least look like it was hearing these criticisms, and it was reacting to these criticisms. That’s a big deal unto itself, and we ought not to sort of minimize it just because it didn’t go far enough. But it doesn’t go far enough. I mean, the real issue is, you know, how do you create a culture where the justices are actually worried about accountability? And where the justices are, you know, not nervous, Hari, but are sort of understanding that there will be consequences if and when their behavior crosses, whatever the line is, whether it’s the line they’ve drawn, whether it’s the line, the judicial conference has drawn. And it’s just hard to believe, Hari, looking at the court today, looking at the code, the court issued back in November, that there are going to be any consequences if more of these stories come out in the future. This why I think we need something more, whether it’s some kind of internal inspector general for the Supreme Court, for the federal courts as a whole, whether it’s more robust oversight of the Supreme Court. But, you know, whichever the path is I think the code of conduct should be the beginning of the conversation about how we create a more accountable Supreme Court, not the end of it.

SREENIVASAN: Professor of Law at the University of Texas, Stephen Vladeck, thanks so much.

VLADECK: Thank you.