Dec 14, 2023 - Politics & Policy

Trump's Supreme Court wild cards for 2024

Photo illustration of the front steps and columns of the Supreme Court building juxtaposed with an aerial show of a crowd at the January 6th Insurrection, seen in the spaces between the pillars of the building.

Photo illustration: Annelise Capossela/Axios. Photo: Tayfun Coskun/Anadolu Agency via Getty Images

Two historic cases related to Jan. 6 arrived on the Supreme Court's doorstep this week, each carrying profound implications for former President Trump's prosecution and political future.

Why it matters: Trump's indictments are deeply intertwined with his 2024 campaign. Favorable Supreme Court rulings that delay — or dismantle — his federal election interference case would embolden a candidacy that critics already warn poses an existential threat to democracy.

Driving the news: The Supreme Court agreed Wednesday to hear a Jan. 6 participant's appeal of a charge for "obstruction of an official proceeding," which the Justice Department has used to prosecute over 300 defendants.

  • The high court will consider the scope of a federal statute that makes it a crime for anyone who "corruptly" obstructs, influences or impedes an official proceeding. Defendants argue the law was never intended to apply to conduct such as Jan. 6 riot.
  • The case, which is not directly about Trump, has implications for parts of his federal 2020 election indictment, which charged him with obstruction of an official proceeding and conspiracy to obstruct.

On a separate matter, the Supreme Court was asked by special counsel Jack Smith to weigh one of Trump's main defenses in his 2020 election subversion case — whether he is "absolutely immune" from prosecution for crimes he committed in office.

  • In a request Smith himself called "extraordinary," the special counsel on Monday asked the court to speedily take up and consider whether ex-presidents have immunity.
  • Trump's team, which criticized Smith's request as a "Hail Mary," has argued that he is protected from prosecution over actions that fell under his official duties while president, a claim that was rejected by U.S. District Judge Tanya Chutkan.
  • Chutkan on Wednesday agreed to temporarily pause all proceedings in the 2020 election case as the D.C. Circuit Court of Appeals weighs Trump's immunity claims, a move hailed by his team as a "big win."

Between the lines: The justices could be in uncharted territory if they decide to take up the immunity question for a former president.

  • "I don't think there's a lot there that's historical precedent, there's not many and the ones that are are not exactly like this," University of Richmond School of Law professor Carl Tobias told Axios.

Zoom in: The timing of Trump's four criminal cases has been a flashpoint between the former president's legal team and prosecutors, with Trump's lawyers repeatedly seeking to delay the cases until after the 2024 election.

  • Smith's aggressive bid to leapfrog the appeals process to keep Trump's March 4 trial on track could be stymied by the Supreme Court's decision to consider the obstruction case, Derek Muller, a University of Notre Dame law school professor, told Axios.
  • "Trump's attorneys could ask the court to delay the trial until the Supreme Court issues a decision, because a decision would apply to interpreting one of the statutes at issue in his case," he said.

The big picture: In the span of less than a week, the Supreme Court has been thrust into the heart of key questions relating to Trump's 2020 election interference case.

  • The questions come as the court, with three Trump-appointed justices, faces scrutiny over ethics controversies and a flagging public reputation.
  • Justice Clarence Thomas has been entangled in the fallout from Jan. 6 after revelations that his wife, conservative activist Ginni Thomas, urged Trump White House officials to try to overturn the 2020 election.
  • Some Democratic lawmakers have already called for Thomas to consider recusing himself from both of the cases at the court's doorstep.

What's next: The Supreme Court said Monday that it would consider Smith's request to weigh Trump's immunity argument, and gave the former president's team until Dec. 20 to respond with their opinions.

  • "It's hard to estimate ... but the justices have shown that they appreciate the urgency and so I think [a decision] will be sooner rather than later," Tobias said.
  • The Supreme Court is expected to hear oral arguments on the review of the question of obstruction in the spring, with a ruling likely by the end of June, per Politico.

Go deeper: Jack Smith to use Trump's phone data at trial

Go deeper