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.
"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.