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What DOJ should do about Trump’s Jan 6 prosecution after Supreme Court’s Fischer ruling

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Even though the Supreme Court has yet to issue its ruling on presidential immunity (expect it on Monday morning), Donald Trump may no longer need it to win. 

On Friday, the justices’ decision in Fischer v. United States squashed much of the Justice Department’s investigation into the former president’s involvement with the Jan. 6 riot at the Capitol. 

Even if the court on Monday holds presidents fully liable to federal prosecution after leaving office, President Biden and Attorney General Merrick Garland would be wise to shut down the special counsel investigation, blame its failures on the Supreme Court, and leave the question of Trump’s responsibility up to the people in November.

Jack Smith and Trump

Former President Trump and Special Counsel Jack Smith (Getty Images)

On the legal question alone, Fischer v. United States was relatively simple and uncontroversial. It held that DOJ had improperly read the obstruction provisions of the Sarbanes-Oxley Act of 2002 (“SOX”). SOX made it a crime for company personnel to shred documents and tamper with witnesses in an official federal investigation.

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Writing for a 6-3 majority, Chief Justice John Roberts held that “the Government must establish that the defendant impaired the availability or integrity for use in an official proceedings of records, documents, objects, or other things used in an official proceeding, or attempted to do so.” 

DOJ may not charge someone for merely disrupting or delaying official proceedings; the disruption has to interfere with actual documents, evidence or witnesses. Otherwise, the court observed, the government could charge a peaceful protester or a lobbyist for attempting to influence an official proceeding.

Fischer is consistent with the court’s recent line of cases narrowing fraud charges to instances where there was actual harm to a tangible property interest (e.g. financial loss) and also the 2015 Yates case, where the Supreme Court ruled that the DOJ improperly charged a fisherman, who tossed a too-small fish back into the ocean, under SOX because “fish” were not “tangible objects” similar to “records” or “documents” in SOX’s financial reform context.

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But what made the case important far beyond its legal significance is that DOJ has wielded SOX as its main weapon against the Jan. 6 rioters. It has charged more than 300 defendants, including Trump, with allegedly violating the document-tampering law by seeking to prevent Congress from counting the presidential electoral votes on Jan. 6, 2021. 

DOJ sought to transform SOX into a general purpose obstruction law because its 20-year maximum sentence imposes massive pressure on defendants to agree to plea bargains. 

Special Counsel Jack Smith followed the Biden DOJ playbook and also indicted Trump on four felony counts, two of them SOX obstruction. Fischer has ripped the heart out of his prosecution. 

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Smith could always seek to press forward, perhaps on some bizarre theory that presenting alternate slates of electors tampers with documentary evidence. But DOJ has a steep hill to climb to prove, beyond a reasonable doubt, that Trump himself had corrupt state of mind or that the alternate electors slate plan was truly fraudulent. 

Smith’s remaining two charges against Trump border on the frivolous. One maintains that Trump committed fraud against the United States, a claim usually brought against government contractors who inflate their bills or hospitals that overcharge Medicare or Medicaid. 

The Supreme Court made clear, as recently as last year, that fraud must involve corrupt activity to obtain money or property; it does not apply to politicians pursuing their political interests. Whatever one thinks of Trump’s conduct on Jan. 6, it did not amount to a quid-pro-quo bribe or financial corruption. 

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Smith’s last charge alleges that Trump violated the voting rights of every American by attempting to alter the election results. Not only has no unbounded theory like this ever received the approval of a federal court (or past attorney general to start with), but Smith’s argument would conceivably render the Electoral Count Act itself unconstitutional. That act, for example, allows majorities of the House and Senate to reject state electors.

DOJ should not erect flimsy legal arguments to convict any defendant, let alone a former president. Public trust in prosecutors and the criminal justice system at large is in serious decline. If Attorney General Garland wants to defend the rule of law, he should shut down the special counsel investigation. 

Smith’s extreme, and now repudiated, readings of criminal law have only reinforced the perception that DOJ is pursuing Trump for partisan reasons having everything to do with November 2024, rather than January 2021. 

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If Smith truly believes that Trump sought to block the peaceful transfer of power, he should charge the former president with insurrection, sedition or both. But Smith and his superiors undermine the rule of law if they publicly accuse Trump of insurrection and instead charge him under baseless fraud, repudiated obstruction and frivolous voting rights theories. 

After yet another loss before the Supreme Court, Biden would be wise to let the people judge Trump in the November election, rather than doing further damage to the law in the hopes of knocking out his opponent in court.

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John Shu is a legal scholar and commentator who served in the administrations of Presidents George H.W. Bush and George W. Bush.



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Biden Receives Warm Welcome at Philadelphia Church

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President Biden, facing a political crisis in which some of his Democratic allies are asking him to be more unscripted in order to demonstrate his ability to win over voters, instead stuck to his script on Sunday, reading from notes for an address to a church congregation that lasted roughly seven minutes.

At a worship service at one of Philadelphia’s biggest Black churches, Mr. Biden — speaking without a teleprompter, which he uses in most of his public remarks — sought to reassure a group of voters who helped him win the White House in 2020 that he is still capable of beating former President Donald J. Trump.

“The joy cometh in the morning,” Mr. Biden told several hundred people at Mount Airy Church of God in Christ, where a visit has become something of a rite for Democrats. “You’ve never given up. In my life, and as your president, I’ve tried to walk my faith.”

Mr. Biden is at a tension point in his campaign, with his advisers seeking to keep his appearances tight and other Democratic allies wanting him to be more freewheeling to show he can respond in real time to events.

“They don’t need scripted remarks,” said Steve Sisolak, the Democratic former governor of Nevada. “He needs to show people that he can do it on the spot and answer questions — tough questions — and be out there with voters.”

The president did spend far more time meeting voters at the church and at two events later on Sunday than he has in recent weeks on the campaign trail. Ammar Moussa, a spokesman for the Biden campaign, said Mr. Biden did exactly what he needed to.

“Here’s what happened on the ground today: Joe Biden campaigned with the heart of the Democratic Party and met with voters and elected officials across a key battleground state,” Mr. Moussa said in a statement. “This is the work that wins elections: focusing squarely on engaging and reaching real voters where they are. You’ll see him do that in Michigan this week, Nevada next week, and all of the battlegrounds between now and November.”

With his every movement and utterance under intense scrutiny, Mr. Biden avoided errors in his brief speech. But some Democrats are asking for far more than a gaffe-free morning.

Senator Chris Murphy of Connecticut, appearing on CNN on Sunday, pushed the president to “do a town hall, do a press conference — show the country he is still the old Joe Biden.”

Still, unscripted appearances come with risks, especially after Mr. Biden’s disjointed 22-minute interview with ABC News failed to calm Democratic nerves. He also stumbled during two radio interviews, even though Biden campaign aides had provided the hosts with the questions, a breach of journalistic ethics that led one of the hosts to leave her station.

And although Mr. Biden’s remarks at the church were short, his thoughts occasionally seemed jumbled and his voice could sometimes be hard to hear.

“I know I’m going to be inclined to go on longer than I should here, so I’m not going to,” Mr. Biden said before wrapping up.

His likely opponent in November, Mr. Trump, has no such qualms about talking.

At his marathon rallies, Mr. Trump, using a teleprompter but often going on riffs without it, speaks for upward of 90 minutes. He tells outrageous lies. He employs hateful language. He mixes up names, dates and places.

But the bombastic former president — who at 78 is three years younger than Mr. Biden and with his heavyset frame appears far more physically imposing — does it all with prodigious stamina. Polls show that voters have fewer concerns about Mr. Trump’s age than Mr. Biden’s.

After Mr. Biden attended church, top House Democrats gathered privately to discuss his candidacy, with several senior members suggesting he step aside.

More publicly, Democrats asked him to demonstrate that he could campaign at a high level.

Senator Angus King, an independent from Maine who caucuses with Democrats, said in a statement issued by his spokesman that Mr. Biden should participate in more “unscripted interviews and direct interactions with voters.”

The president will hold a solo news conference after a N.A.T.O. summit on Thursday — which to some Democrats may feel like an eternity, with every day bringing more Biden allies suggesting in public or private that he drop out.

Mr. Biden has insisted he will not do so, saying in his Friday interview that only the “Lord Almighty” could force him to step aside.

He also eschewed his teleprompter at two other events on Sunday. He spoke for about seven minutes at one of his campaign’s offices in Philadelphia, assuring the audience that his alter-ego, Dark Brandon, was “coming back.” And he addressed supporters at a union event outside Harrisburg for another six minutes.

Before Mr. Biden spoke at the Philadelphia church, one congregant, Rachel Hooks, offered a prayer from the stage that did not shy away from the doubts swirling around his candidacy.

“Touch his mind, O God, his body; rejuvenate him and his spirit, O God — bless him and give him direction,” Ms. Hooks said, echoing a similar plea for mental and physical strength she also offered for members of law enforcement.

During his career, the president has frequently turned to Black faith communities both to offer support during community tragedy and to seek it when he is struggling politically.

Black voters make up a key segment of Mr. Biden’s coalition, although polls show their enthusiasm for his candidacy has dipped. Still, they have higher opinions of the president’s performance than other groups and are less likely to think he should drop out, according to a New York Times/Siena College survey conducted after the debate.

“Let him know we’re with him, hallelujah,” one woman shouted out from the audience as Mr. Biden walked onstage and a choir sang.

In an energetic sermon, Bishop J. Louis Felton pointed to Mr. Biden’s well-documented childhood stutter and said his style of speaking should not be held against him.

After the service, Mr. Biden mingled with congregants in the church sanctuary, shaking hands and taking photos for more than 30 minutes.

Stacia Parker, 57, a longtime member of the Mount Airy church, said she thanked Mr. Biden for forgiving $117,000 worth of her student loans. She said she found him cogent and compelling, both onstage and up close in person.

“We don’t kick you when you’re down,” Ms. Parker said, showing off a selfie that the president snapped on her phone with her seven-year-old granddaughter.

Reporting was contributed by Annie Karni, Luke Broadwater, Michael Gold and Maggie Astor.



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Emma Raducanu knocked out of Wimbledon by Lulu Sun after slipping on Centre Court

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Emma Raducanu is out of Wimbledon after being hampered by injury in the deciding set of her fourth-round match against New Zealand qualifier Lulu Sun.

The British wildcard, 21, lost 6-2 5-7 6-2 in a dramatic contest on Centre Court.

Raducanu had levelled the match and regained some confidence after a stunning performance from an inspired Sun.

Then Raducanu slipped on the baseline in the first game of the third set.

The 2021 US Open champion stayed down on the grass and shook her head before getting back to her feet.

The game was stopped at 15-30 on Raducanu’s serve and she received treatment – on her leg and back – while laid out on the court.

A roar of encouragement greeted Raducanu when it became clear she would carry on.

However, she gingerly lost serve immediately and could not recover the break.

Her movement during points improved, despite clasping her back between games, but was broken again for 5-2 and could not take either of two break points before Sun served out on her second match point.

It means the world number 135 missed out on reaching the Wimbledon quarter-finals for the first time in her career, while there are no British players left in the singles draws at the All England Club.



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Juveniles detained after disturbance at Carson’s SouthBay Pavilion

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More than 70 juveniles were detained after a crowd grew unruly at a Carson shopping center Saturday evening, setting off fireworks and lighting a trash can on fire.

The Los Angeles County Sheriff’s Carson station responded shortly before 7 p.m. to reports of a crowd of about 200, mostly juveniles, causing a disturbance at the SouthBay Pavilion mall.

“A trash can was lit on fire, and illegal fireworks were set off inside a retail store inside the mall,” the Sheriff’s Department posted on Instagram. “Carson deputies responded swiftly and issued dispersal orders. The group refused to comply, and surrounding law enforcement agencies responded to assist.”

The shopping center was closed, and deputies ordered the crowd to disperse. About 73 juveniles who failed to disperse were detained and issued citations that will require court appearances. said Sheriff’s Sgt. Robert Fulop. One adult was arrested, and several juveniles were taken to the Carson station and released to adults, Fulop said.

The mall’s management did not immediately respond to a phone call and email sent by The Times.

Fulop said he understood that the mall had a chaperone policy similar to the one instituted earlier this year by Del Amo Fashion Center in Torrance in response to two brawls that occurred there last year.

Fulop said it did not appear the policy was being enforced.

“None of them that I am aware of had an adult chaperone,” he said. “It can be problematic at any venue like that. There are so many points of entry, and they can make their way into the various parts of the mall.”

The mall was finally cleared around midnight, Fulop said.





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