Speed It Up! Politico Suffers Frustration Over Immunity Appeal Delay of J6 Trial

We've already seen MSNBC legal blogger Jordan Rubin going full angst over the immunity appeal delay that threatens to push back the start date of the J6 trial which was originally scheduled to commence on March 4.

On Wednesday, Politico reporters Kyle Cheney and Josh Gerstein joined Rubin in the Worry Room as they expressed their frustration over the slow pace of the appeal delay which threatens to push that critical trial past election day. Their utter frustration was on full display on Wednesday in "As judges mull presidential immunity, Trump reaps the benefits of delay."

The only thing that bothers me about the slowdown is the people being held having to continue languishing in horrible custody.

I would hope that they're able to wait the verdict at home but if I know the DOJ/FBI/DC court trash, they're still imprisoned.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

How long has it been since Jan 6th, 2021?

The is also the SCOTUS case, Fischer v. United States:

Issue: Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence.

Although this originated from a J6 defendant, it also impacts Trump who was charged with the same felony.

From Politico of all p[laces: The ‘Sleeping Giant’ Case that Could Upend Jack Smith’s Prosecution of Trump

The Supreme Court has agreed to consider a case that doesn’t mention the former president, but that could invalidate half of the Jan. 6 charges against him.

"There’s been a lot of attention paid to the Supreme Court’s upcoming decision on Donald Trump’s claim of immunity from prosecution for actions taken while president, a judgment that will have big implications for the 2024 presidential campaign and special counsel Jack Smith’s indictment of the former president on charges related to Jan. 6. But there’s a sleeping giant of a case also percolating in the Supreme Court that’s even more likely than the immunity issue to impact Smith’s prosecution of Trump.

"The case is Joseph W. Fischer v. United States, which the court agreed to hear in December, and which doesn’t explicitly mention Trump. At issue is whether prosecutors and the Department of Justice have been improperly using a 2002 law originally aimed at curbing financial crimes to prosecute a Jan. 6 defendant named Joseph Fischer. Should the court side with Fischer, it would also call into question the use of the law against other Jan. 6 defendants — including Trump."

"Smith’s indictment contains four counts in total. Two of those are for obstruction of an official proceeding and for conspiracy to do so. Those crimes are part of a relatively recent criminal statute governing financial disclosures known as the Sarbanes-Oxley (or “SOX”) Act, which was enacted following the Enron corporate accounting scandal, and which makes it a crime to obstruct an official proceeding of the U.S. government. The Justice Department has so far used it to charge over 300 people involved in the Jan. 6 insurrection; more than 150 have been convicted of the offense following jury trials or pleaded guilty to it."

"Many of these defendants, including Fischer, have argued that the “obstruction of an official proceeding” part of the SOX Act was only meant to apply narrowly to financial crimes similar to the ones that produced the law in the first place — and not as broadly as the Justice Department has used it in the Jan. 6 cases."

Great post.

I’d be surprised if you will see a decision in Fischer before June.

As for the DC Circuit case on presidential immunity, I am speculating that it will be a 2-1 decision to deny immunity, with Judge Karen LeCraft Henderson dissenting. She is probably carefully crafting her dissent, which she will send to the two judges in the “majority” who will then edit their draft opinion to respond to the points made by Judge Henderson. This takes time. I actually have a lot of confidence in Judge Henderson, who was appointed by Bush 41 and has served on the DC Circuit for over 30 years. She has a lot of integrity and wisdom. Her opinion is the one to watch, as it could well and truly form the basis for the opinion of the Supreme Court majority.

As far as people rotting in jail are concerned, the failure of even one judge somewhere to grant habeas corpus is outrageous. Many of these people have been held longer than whatever the sentence would be if this was something other than a kangaroo court or a Volksgerichthof-type proceeding.

The DC appeals court will side with Jack Smith, but given the momentous significance and precedent involved, the Appeals' decision will have to pass muster with SCOTUS. The decision has to be a work of superior legal scholarship because it will be scrutinized by the entire country. IMO they will defending the indefensible. The implications of finding Trump liable for his actions on Jan 6 would be earth-shattering.

Holding a President criminally and personally accountable for all his actions and decisions while conducting official business could destroy the office. For example, should Biden be held accountable legally and personally for the COVID shutdowns and mandates? Or Obama for targeting and killing an American citizen using a drone strike without due process? The Appeals' decision has to find a way to shield Biden and Obama and just target Trump. A tall order.

I think you are right on Fischer. SCOTUS will take its time. The Politico article posited,

"If the immunity issue resolves before March 4, or at least before Fischer is decided, Smith — and for that matter, U.S. District Judge Tanya Chutkan — may go forward with a trial on all four counts despite the risk that two of them might be declared invalid. (Smith could seek expedited review of Fischer in the Supreme Court, but it denied a rush request on the immunity issue, so that effort would seem futile.) If the trial occurs on the sooner side, and the Supreme Court later rules in a way that impacts Trump’s case, it could give Trump a basis to appeal a conviction on the rationale that the jury was tainted by evidence bearing on flawed SOX Act charges. (The problem for Trump would be that the relevant evidence probably overlaps with the conspiracy to defraud the United States charge anyway.) If a guilty verdict is reversed on appeal for some reason, Smith would have to retry Trump, which is not feasible given the treacherous politics of prosecuting former presidents not once, but twice. And if Trump wins the election, he’d surely call off the prosecution or try to pardon himself. Alternatively, Smith could go to trial in March on just the two remaining counts, but that would cut down the numerical odds of a guilty verdict — not to mention the fact that the first SOX Act count is the only one that doesn’t require proof of a conspiracy, or a meeting of the minds between more than one person — and will be perceived as a political triumph for Trump.

"At a minimum, then, the Supreme Court’s decision to hear the Fischer case means the Jan. 6 case against Trump has legal exposure if it goes to trial on March 4, although the court might ultimately uphold DOJ’s use of the obstruction charge in Fischer. And if it doesn’t back the government … well, that would have enormous legal and political impacts for hundreds of Americans, perhaps most especially for a certain former president.

The article was written on January 17. It has been OBE. The trial has been taken off the docket indefinitely. After Super Tuesday, Trump will be the presumptive nominee of the GOP. Election interference will be crystal clear if Smith proceeds before the election.

And the Fani Willis case has opened a new avenue for Trump to go after the WH and Smith for orchestrating all of these cases. Willis has be talking to the WH about the case. She is facing multiple investigations.

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