The Incredible Shrinking J6 Indictments?

Could the Supreme Court prescribe a dose of constitutional Ozempic to Special Counsel Jack Smith and Attorney General Garland? That possibility came into focus as the Nine, across two cases this month, displayed skepticism toward the government’s prosecutorial posture. If the Department of Justice is ordered to cut back on its charges — or concludes it ought to drop them — it would be a stunning verdict on the January 6 prosecution.For it turns out that everywhere the Supreme Court has looked, it has found prosecutorial overreach. First, in Fischer v. United States, there was skepticism toward the government’s attempts to bring rioters at the Capitol to book under the Sarbanes-Oxley Act, which was intended to combat financial fraud. More than 300 defendants, including President Trump, have been charged under its terms, which could lead to 20 years in the big house.The statute outlaws “corruptly obstructing, influencing, or impeding an official proceeding” and punishes anyone who “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so” with the aim of “corruptly” blocking such a proceeding. Lawyers for one Joseph Fischer — and Mr. Trump — argue that a crime on paper is a poor fit to describe the chaos at the Capitol. Mr. Smith insists he can make it work against Mr. Trump.If the special counsel can’t, though, two of the four charges handed up against the 45th president would fall away. Further slimming of Mr. Smith’s case could be an outcome of the oral arguments in Trump v. United States, which centers on immunity. At one point, as our A.R. Hoffman has reported, Justice Amy Coney Barrett suggested that Mr. Smith pursue a skinnier indictment limited to indisputably “private” acts. If Mr. Smith hopes to avoid a long litigation over which acts in his indictment are considered official and which are private, he could opt to shave off all the close calls that could turn out to be covered by immunity. Mr. Smith has, after all, been trying to outrun Mr. Trump’s lawyers in an effort to get the cases heard before the election. He calls his interest “compelling,” though a speedy trial by rights belongs to the accused. Mr. Smith’s indictment, though, could be far less compelling if he drops, or is forced to drop, all save the charges involving private acts that Mr. Trump’s attorney, John Sauer, concedes his client is not immune for (a hasty concession, we think). The special counsel could get his glide path to a conviction, but it could be a less than satisfying journey, for Mr. Smith, if the accusations that relate to Mr. Trump’s presidency fall by the wayside.Imagine, then, a diet version of Mr. Smith’s indictment. Shorn of the Sarbanes-Oxley counts, it only has two charges — conspiracy against rights, a rarely used accusation, and conspiracy to defraud the United States. To prove those charges beyond a reasonable doubt, the special counsel would likely not be able to reference Mr. Trump’s exertion of pressure on Vice President Pence, nor his commandeering of the DOJ. Mr. Smith could cling to what the DOJ’s man in court, Michael Dreeben, calls an “integrated conspiracy,” the whole kit and kaboodle of which he wants to convict Mr. Trump. If so, though, he’d likely have to yield on his hope for a trial before the election. That date has no legal salience, but plenty of political import. The justices are unlikely to see Mr. Smith’s rush as a reason to skimp on Mr. Trump’s due process rights or the presidency’s prerogatives.

The Incredible Shrinking J6 Indictments?

The Incredible Shrinking J6 Indictments?

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