This week, all eyes were on the Willis-Wade fiasco in Fulton County, Georgia, but three less smuttily scintillating cases seem at last to be limiting the overreach of the Department of Justice respecting the J6 defendants and Jack Smith’s persecution of President Donald Trump. In interpreting criminal statutes, it seems to me that Courts should not be creative and expansively read  into them things that the legislature (that writes the laws) did not clearly proscribe as illegal, and it appears that finally, courts higher than the highly partisan D.C. Circuit judges understand that.

The J6 Defendants

If you have been paying attention at all, you are aware that hundreds of peaceful January 6 demonstrators at the Capitol have received draconian punishments and, as Julie Kelly so assiduously reports, are being very badly treated in confinement. A few have even committed suicide because of their treatment at the hands of the D.C. Courts and the prosecution.

Two cases signal that as many as 100 or more of them will have a pathway to obtain reduction of their sentences. As I will explain, these cases and the Supreme Court’s grant of certiorari in response to a Trump motion for a stay, may well result in a major loss to Special Counsel Jack Smith and those counting on a jail term for Trump being a vehicle to schlep the demented President Biden over the finish line for a second term.

All the J6 defendants who pleaded guilty had to agree not to challenge the levels of sentence enhancement the DoJ said were applicable. Those who refused the plea deals and went to court (a lesser number) were given those enhancements anyway by the D.C. Circuit Court judges. The relevant statute allows under the sentence enhancement provision a sentence of up to 20 years, so the option of a plea deal was attractive to many (on top of the cost of proceeding, for as you remember, the big firms which rushed to provide pro bono representation to Gitmo defendants couldn’t be bothered with these people.)

The Fischer Case

Joseph Fischer was one of the J6 defendants who declined to enter into a plea agreement. Like most of the J6 defendants he was at best guilty of a misdemeanor – trespassing -- but the Department of Justice charged him under 18 U.S.C. Sec. 1512 (c)(2) of “corruptly interfering with an official proceeding.”  Because the Administration would prefer the narrative that J6 was an  ‘insurrection” and not, as counsel for many of the defendants William Shipley believes it was, “a protest over which the police lost control because they were undermanned and unprepared,” this is the tag DoJ has chosen.

Fischer’s case went through the appeal process and when he lost, he applied for certiorari to the Supreme Court, which was granted. The case will be heard in mid-April. Per Shipley, ”Two of the four counts in the indictment against former President Trump, rely on the same legal rationale and facts from the events of January 6 as those being used against January 6 defendants such as Joe Fischer. If the Supreme Court reverses Joe Fischer’s conviction, those two counts alleged in Special Counsel Jack Smith’s indictment will be dismissed -- and with them the heart of the D.C. prosecution.”  Other consequences of a reversal, might mean that hundreds of the J6 defendants may be able to get their sentences reduced.

The Brock Case

Further jeopardizing the DoJ’s railroading of the J6 defendants is this week’s decision by the D.C. Court of Appeals. Looking at the same statute as the Supreme Court is considering in Fischer, three judges on the D.C. Court of Appeals, (Millett, Pillard, and Rogers, all of whom were appointed by Democrat presidents) ruled this week that rioters did not merit lengthier sentences for interfering in the “administration of justice” when they paraded through the Capitol. Judge Patricia Millett in her opinion wrote “The phrase ‘administration of justice’ does not encompass Congress’ role in the electoral certification process.” Maybe the panel could see the way the wind was blowing. Certainly it could have said more.

Former prosecutor Andrew McCarthy weighs in: ”In reversing a nonviolent Jan6 defendant's sentence yesterday, DC-Cir was mum on how Biden DOJ has misused [guide]lines, systematically inflating sentences by >400% (in obstruction cases that Supremes will soon scrutinize).” 

Trump v. U.S.

If you aren’t already dizzy watching all the litigation balls in the air, the Supreme Court granted certiorari upon Trump’s application for a stay on the question “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve criminal acts during his time in office?” The court in effect is saying that it -- not lower courts -- has the sole authority to decide when a former president has immunity for acts committed while in office. This case completely halts the D.C. proceeding against him, and should they limit his immunity in a way that affects the prosecution of the case, there is still the likelihood that the Fischer and Brock cases will present impediments to the prosecution.

As all these cases proceed, the Smith decision to proceed in both Florida and D.C. simultaneously against Trump and to do it late in the game, are presenting what appears to be insurmountable calendar conflicts, making resolution before the election increasingly unlikely. President Biden keeps sinking in the polls, no likely successor to head the Democrat ticket has shown up, and, now the lawfare gambit seems a fading possibility.

The last hope is to keep him off the ballot, and joining several states in this effort, this week a traffic court judge in Cook County ruled he could not appear on the Illinois primary ballot because of the “insurrection.” The judge stayed her order and Trump has appealed.  In Colorado, where this tinpot claim first appeared, a judge has ruled otherwise, and held that Trump must be allowed on the ballot. 

[The judge] looked more favorably upon Trump’s team’s argument that the amendment does not apply to the office of the president. The text of the amendment specifies “Senator or Representative in Congress” and “elector of President and Vice President” but not “President.”

Trump has not been convicted of insurrection and was acquitted by the U.S. Senate of charges of engaging in insurrection and continues to deny wrongdoing.

Trump continues to face legal challenges in numerous states across the country, but has had a string of favorable rulings.[snip]

A federal court in New Hampshire recently dismissed a similar case, ruling that the Fourteenth Amendment claim is a “nonjusticiable political question.” A Minnesota state court recently dismissed a lawsuit aiming to keep Trump off that state’s primary ballot. And a Michigan Court of Claims judge ruled that the Secretary of State must list Trump on the ballot as well.

I hate to help the opposition, but I do think they’d be better off crafting and sticking to rational policies and sentient candidates than trying to get rid of the opposition through such persistent and unpersuasive lawfare.