The images of savage violence at the nation’s Capitol remain as vivid today, three years after that January 6. Those were scenes of an attempt, unprecedented in American history, to prevent a new President from taking office. Now, 2024 begins to unfold, possibly the year of reckoning, legal and political, for that assault on the Constitution itself.
This is a presidential election year, and that reckoning could occur, simultaneously, in the U.S. Supreme Court, in other courts and in election precincts and political conventions across the country. Seldom have the law and elections been so completely intertwined.
America’s voters will begin expressing their choices for President on January 15 in Iowa’s caucuses and will continue to do so up to the final tally – the national election on November 5. The Supreme Court is already deeply immersed in the legal peril confronting former President Donald Trump or his White House aides. What happens to Trump legally may well have an impact on him politically.
The Court will be confronted with at least four major questions, all emerging from the 2021 attack on the Capitol or from other actions by Trump or his aides as they tried to undo his defeat in the 2020 election. Later, if Trump were to be convicted in any of the four criminal cases pending against him, more cases could reach the Justices.
Because the political calendar is about to start, there is not much time for the Supreme Court to play its part. The most urgent question it faces now is whether Trump is constitutionally disqualified from seeking the Presidency. Just last night, the Court agreed to review that controversy; it set an unusually fast timetable for doing so.
Also pressing is whether Trump has absolute immunity to being prosecuted for any crimes that occurred while he was serving in the White House. That question could reach the Court in a matter of days, after a federal appeals court rules on it.
Later in the Court’s current term, it will seek to answer whether Trump has been properly charged with a crime for obstructing the January 6, 2021, congressional process that completed the counting of the 2020 election results. More than 300 individuals already convicted of that same obstruction crime for participating in the assault on the Capitol could also be affected; their guilty verdicts might be undone.
Finally, the Court may soon be drawn into the controversy over whether his former White House chief of staff, Mark Meadows, can be tried in Georgia state court for his role in the January 2021 incident contesting the 2020 presidential election outcome.
Here are some details of each of those four controversies:
- Is Trump eligible to seek the Presidency in 2024?
The Court, for the first time in history, is examining whether the Constitution bars a major political party’s candidate from seeking the Presidency. That is the issue at stake in the case titled Trump v. Anderson, the Trump appeal that the Justices have just agreed to review. (The person on the other side of this case is Norma Anderson of Lakewood, Colo., who is a former state legislator and is one of six voters who sued in state court to challenge Trump’s candidacy. She has left the Republican Party and is involved in this case as an independent voter.)
This case, to be heard by the Supreme Court on February 8, illustrates the 2024 link between law and politics. The case is a complex mix of constitutional principle and state and federal law and, as a civil case, does not depend on the outcome of any of the criminal trials of Trump. At the same time, however, Trump has always claimed that the criminal cases against him growing out of the January 6 attack are designed to interfere with his 2024 campaign.
Jack Smith, the special federal prosecutor who filed four January 6-related charges against Trump, has sought to keep that and other cases out of politics. He is not taking any part in Trump v. Anderson and explicitly chose not to charge Trump with the federal crime of insurrection or rebellion in order not to bring that highly-charged issue into the case.
One of Trump’s arguments has been that only Congress can judge his eligibility to seek the Presidency again and one point he has made in that connection is Congress’s passage of a 1994 law explicitly making insurrection or rebellion a federal crime. That could be a part of what his lawyers argue in the case of Trump v. Anderson. In fact, his lawyers made that very point when this case was before the Colorado Supreme Court, but that court rejected it in its ruling in December declaring him ineligible to seek office again.
When Trump’s legal team filed their appeal to the Supreme Court in the Colorado case, they raised only a single question: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?” That is sweeping enough to encompass perhaps eight or more specific questions embodied within it. The Court did not narrow the scope of what it will consider in the case.
This case turns fundamentally on the meaning of a part of the Constitution’s 14th Amendment, added in 1868 after the Civil War. Section 3 of the Amendment bars from office any federal officer who engaged in insurrection or rebellion after previously taking an oath to defend the Constitution.
Among the specific questions that could be at issue in this case are: Is the scope of that clause a political question that courts have no power to decide? Does the clause require some action by Congress to implement the disqualification? Does the clause apply at all to the President? What do “insurrection” and “rebellion” mean? Did Trump engage in either? Are Trump’s actions related to the January 6 incident protected constitutionally as free speech?
The Court in exploring the case will not be weighing the political impact of whatever it ultimately decides, but if Trump loses in a major way, his political career could be ended, and permanently. Perhaps the most significant political question surrounding this case, then, is this: Is the Supreme Court prepared to go that far, and to do so in the very midst of the presidential election campaign?
2. Is Trump immune to all of the criminal charges he faces?
The former President is making a fundamental constitutional challenge to all of the January 6-related charges against him in the Special Prosecutor’s case awaiting trial before a jury in Washington, D.C. As of now, that case – United States v. Trump – is scheduled for trial beginning on March 4. (That is one day before “Super Tuesday,” when Republican presidential primaries will be held in 16 states and territories – including Colorado. Trump, however, will have to be in court if the D.C. trial has started.)
While Trump is also expected to claim immunity to state criminal charges pending against him in Georgia and New York, those cases may not reach the Supreme Court during its current term. The case of United States v. Trump, however, may reach the Court within a matter of days.
The federal trial judge in that case, District Judge Tanya S. Chutkan, has rejected Trump’s immunity claim. His challenge to that ruling is now before a federal appeals court in Washington, and is scheduled for a hearing there next Tuesday.
Part of Trump’s claim is that every facet of Jack Smith’s January 6 prosecution involves actions that Trump took while he was President, and he is constitutionally immune for that reason. He also claims that, because the Senate acquitted him of impeachment charges in 2021, he cannot be prosecuted for crimes based on the same evidence without violating the constitutional ban on “double jeopardy” (that is, being tried more than once for the same crime).
Prosecutor Smith tried to persuade the Supreme Court to rule on the immunity claim before the federal appeals court took it up, but the Justices refused to do so last month, allowing the appeals court to go first. That lower court is expected to rule promptly after Tuesday’s hearing, so the immunity dispute could be back before the Supreme Court late this month or in February.
3. May Trump and others be charged with obstructing Congress’s January 6, 2021, proceeding?
Last month, the Supreme Court agreed to review an appeal in the case of Fischer v. United States. It involves Joseph W. Fischer, a former police officer in Lebanon, PA. He faces several criminal charges for entering the U.S. Capitol on January 6, 2021, as part of the pro-Trump mob.
What is most significant about Fischer’s case is that it involves a challenge to criminal charges that have also been made against Trump in Prosecutor Jack Smith’s Washington, D.C., case. It is also a law under which some 300 other January 6 participants have been convicted or charged. If Fischer were to win his appeal, it potentially could affect Trump’s case and all of those others.
At issue is part of a law passed by Congress in 2002, in response to the corporate scandal involving a huge energy company, Enron Corp., and its accounting firm, Arthur Anderson. The scandal involved a series of shady accounting practices, and shredding of key documents; in the end, both Enron and Anderson collapsed.
The provision at issue in Fischer v. United States makes it a crime to obstruct a congressional proceeding by tampering with evidence. That is the first of two parts in the law. A second part, more broadly aimed at obstruction, is at issue in the Fischer prosecution. A federal judge ruled for Fischer, finding the charge against him too broad because it was not linked to the destruction of evidence or congressional documents. A federal appeals court disagreed, and reinstated the charge against Fischer.
Because the Court has just granted review of Fischer’s appeal, without expediting it, a hearing before the Justices is not likely until late March or in April. Two of the four criminal charges against Trump involve the same provision of the 2002 law. The impact of the Court’s coming decision on the issue could affect the Trump trial, depending upon when that does begin.
4. May former White House aides or Cabinet officers be prosecuted in state court for January 6 crimes?
The case of State of Georgia v. Meadows is making its way toward the Supreme Court, and could turn out to have significance for one of the criminal cases against Donald Trump – in state court in Georgia.
Along with Trump, his former chief of staff, Mark R. Meadows is facing sweeping “racketeering” charges under Georgia law for his role in attempting to overturn Trump’s 2020 election defeat, including events that occurred on January 6, 2021. Another Trump associate, former Acting Attorney Jeffrey Clark, is also accused of those crimes.
Meadows and Clark have been attempting to use a federal law that dates back to 1815, in the wake of the War of 1812, giving federal officers a right to shift criminal cases against them from state to federal court for trial. The idea behind this approach is that state courts may be hostile to a federal officer, carrying out official duties, so the case should be shifted in order to prevent interference with those duties.
Last month, a federal appeals court in Atlanta rejected Meadows’ plea to avoid trial in state court in Fulton County, Georgia. What Meadows is accused of doing, in the January 6 incident, was not a part of his official duties but were political actions attempting to block the transfer of power after Trump’s defeat, according to that court.
Meadows is now seeking to have that three-judge panel reconsidered by a broader bench of that appeals court. That could delay the controversy’s move toward the Supreme Court, but it eventually could reach the Justices if Meadows or Clark seeks to take the question there.
Trump will have other defenses, including an immunity argument, to the state charges in Georgia, but also could seek to have the case shifted to federal court in hopes of a more favorable outcome.
(NOTE TO READERS: The Supreme Court on Monday will resume its public hearings, and the sessions over the next two weeks will involve cases others than those related to the January 6 uprising. A dispatch about those other cases will appear in this space tomorrow.)
(APOLOGY: In an earlier version of this post, auto-correct changed the A B C D numbering to all 1’s. It is fixed now. Regrets.)