Friday Round Up! 6/28/24

The Court hasn't let Trump off the hook, so far.

I was on the road for most of Thursday through Saturday morning doing a quick turn and burn to northern Virginia and back to Connecticut. All I can say is the drive down the northeast corridor is brutal. The good news is that I was too tired to watch the presidential debate on Thursday night (though my phone was blowing up from texts from people who were). I’m not in any hurry to watch a replay.

Anyhoo, having to keep my hands on the wheel also kept me from reading the two big Supreme Court opinions that dropped on Friday. One of them, Loper Bright Enterprises v. Raimondo, overturned a 40 year-old precedent, Chevron v. Natural Resources Defense Counsel, which created “Chevron deference” — a doctrine that required courts to defer to executive agency interpretations of laws they administer, as long as such interpretations were “reasonable.” The deference was important because it allowed agencies, which are often implementing laws requiring specialized and technical knowledge (consider the FDA implementing safety standards for drugs, for example), to have the latitude to fill in legislative gaps allowed them to execute their mandates more efficiently, without getting bogged down in litigation. Well, now the Court has snatched back that authority, meaning that courts, rather than experts in the field, will be the ones filling in these gaps. What could go wrong? Renato and I will discuss more next week.

In the meantime, I have been focused on Fischer v. United States, an appeal from a January 6 defendant who is challenging the applicability of 18 U.S.C. 1512(c)(2) to his conduct that day. This statute is the obstruction statute which has been charged (along with other crimes) in approximately 300 prosecutions stemming from January 6, including against Trump. The question for the Court was the scope of the criminalized conduct of the statute, which was passed as part of the Sarbanes-Oxley Act in the aftermath of the Enron accounting scandal. You’ll recall that the executives in Enron shredded documents which they knew contained evidence of crimes under investigation. The Court notes that 1512(c) was intended to “plug a loophole” in the criminal statutes that were then in effect, which did not make it a crime for someone to shred documents (though weirdly they could be held liable for “corruptly persuading” someone else to do so).

The relevant part of the statute reads as follows:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined . . . or imprisoned not more than 20 years, or both.

Basically, Fischer argued that the actions encompassed by the word “otherwise” in (c)(2) is limited to conduct that “impairs the integrity or availability of records, documents, or objects used in an official proceeding,” not to obstructionist conduct more generally (like taking over the chamber and bringing the proceeding itself to a halt or causing people to evacuate, etc.).

The Court agreed with the defendant, using various canons of statutory construction to hold that the specificity of (c)(1) evinced Congress’ intent merely to make clear that the types of evidence destruction contained therein weren’t exhaustive and may occur in other ways. It reasoned that if (c)(2) was intended to be broad enough to cover any obstructive conduct, then (c)(1) would be superfluous and redundant. Notably, Justice Jackson concurred in this holding. Justice Barrett, joined by Justices Sotomayor and Kagan, dissented, arguing that the majority’s mode of statutory construction was “using a hammer to pound in a screw — it looks like it might work, but using it botches the job.”

Anyway, here were are. So what does it mean? Honestly, looking at the conduct at play on January 6, it may not mean much. After all, the purpose of the siege on the Capitol was to halt the counting of certified slates of electors — which, by the way, involve tangible documents. As Jackson notes in her concurrence, “it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding ‘in ways other than those specified in (c)(1).’” She notes that the district court can engage in further factfinding on this issue for Fischer, as with other defendants who might now challenge their convictions under 1512(c)(2).

But what about Trump? Well, in his case, it’s even more straightforward: Trump was directly involved in operationalizing the coup blueprint outlined by John Eastman, which involved providing Congress with a false slate of electors. On this point, even the majority appears to throw Trump under the bus, noting the following:

When the phrase ‘otherwise obstructs, influences, or impedes any official proceeding’ is read as having been given more precise content by that narrower list of conduct, subsection (c)(2) makes it a crime to impair the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1). For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence. (emphasis mine)

So, this case does not seem to help Trump…at all. And, it won’t even impact the vast majority of January 6 related prosecutions: According to the Justice Department, only 52 cases — fewer than 2% of all the cases charged for January 6 — involve individuals who were convicted and sentenced 1512(c)(2) and for no other crime.

In other, and even better news, the Court threw out a First Amendment challenge brought against the Biden administration for coordinating with social media companies to combat COVID and election misinformation, ruling that the plaintiffs lacked standing to sue. (Justice Alito’s dissent in that case, which is basically an apoplectic Fox News rant against the Biden administration, is sort of entertaining to read...I’m surprised he didn’t manage to work in “tHe lAPtOp iS rEaL!” somewhere in there.) That doesn’t mean that the Court won’t revisit the issue on the merits sometime later, but it does mean that the administration can get more aggressive about countering election misinformation, which is likely to be worse than anything we’ve ever seen. At this point we have enough problems heading into November, so it's good we can at least address some of them.

Meanwhile, in this week’s podcast, Renato and I discussed Trump’s challenge to Smith’s appointment and the Court’s hot mess of Second Amendment interpretations:

Notable clips from this week:

• I joined ABC News Live earlier this week to discuss the abortion ruling which the Court website weirdly posted prematurely and then took down (they sure do seem to have very poos opsec when it comes to abortion cases!). They told me to wrap before I could make this additional point but the same issue — involving a conflict between a state abortion ban and federal law requiring emergency care (as embodied in guidance to states from the Department of Health and Human Services) — is being litigated in the 5th Circuit, and so this issue is likely to come back to the Court soon

Articles worth reading:

• In light of Fischer, this excellent analysis from Just Security on how the ruling impacts the various January 6 cases which have already been prosecuted, pleaded out, or still in progress is worth a read.

Upcoming events:

• Freedom Academy Book Club, Wednesday, July 10, 10-11 a.m.. I’m very excited that my former CNN colleague, Jim Sciutto, will be joining us to discuss The Return of Great Powers: Russia, China, and the Next World War. I love Jim’s work and insights into national security issues and this is a discussion you won’t want to miss! Paid subscribers will receive a Zoom link three hours before.

  Have a great Sunday!