The Supreme Court was miraculously able to sidestep any grappling with attempts to subvert the 2020 presidential election in Trump v. Anderson, the case over whether Donald Trump was barred from serving as President again for encouraging an insurrection. The Court did not need to reach the issue of whether Trump’s actions qualified because they decided on technical grounds that states did not have the power of disqualification through removal from the ballot.
But the Court cannot sidestep the issues any longer, as they are coming to the Court’s April sitting. In the Fisher case, being heard on April 16, the Court will confront the question whether January 6 rioters could be charged with obstructing an official proceeding under a provision of the Sarbanes-Oxley act. The case turns on a technical issue of statutory interpretation—the meaning of the word “otherwise” in the statute—but in resolving the question it will be necessary to look at Fisher’s conduct as he invaded the Capitol, and how the Court discusses and characterizes the actions will be key.
Then, in the Trump immunity case being heard on April 25, the issues of Trump’s attempts to subvert the 2020 election will be front and center. Trump has been charged with a number of crimes related to his attempt to turn himself from an election loser into an election winner, and he’s arguing that he as a former president has absolute immunity from criminal prosecution for any official acts as President, even those that would be illegal for every other person in the country. One of the arguments that special counsel Jack Smith is making in response is that especially crimes related to trying to overturn the results of an election and interfere with the peaceful transition of power cannot be subject to immunity—with immunity, the Supreme Court simply gives a sitting president the power to use violence, intimidation, trickery, and any other crime to turn himself from an election loser into an election winner. That would be the end of democracy.
The Court has managed to stay out of this mess for the last 3+ years. Its free ride is over.