As the US Circuit Court of Appeals in Washington, DC, gets ready to begin its new term next month, the next two weeks could usher in several consequential rulings from the federal appeals court, often called the second most powerful court in the country, that could bear on the federal investigation into and prosecution of former President Donald Trump for his 2020 election reversal schemes.
At least three court cases touching legal issues that could affect special counsel Jack Smith’s approach are ripe for rulings from the DC Circuit. The rulings, once they come, will likely shape how US District Judge Tanya Chutkan may view the law and the charges against the former president in the criminal election subversion proceedings over which she is presiding.
In one case, Trump ally and Republican Rep. Scott Perry is challenging the access federal investigators can have to his phone in the 2020 election subversion probe. Another dispute is over Trump’s sweeping immunity claims in the civil lawsuits that have sought to hold him accountable for his actions and leading up to the January 6, 2021, Capitol assault. The third matter relates to the obstruction statute that has been a central charge in the Capitol riot prosecutions; Smith’s indictment of the former president in the election case includes two charges based on the provision in question.
There’s no guarantee that the rulings will come out in the coming weeks. But the start of the new DC Circuit term in early September puts additional pressure on the circuit judges to clear out their opinions in lingering cases. Regardless, the cases highlight the ongoing uncertainty in the legal terrain the special counsel is navigating as he advances toward a historic trial of the former president while wrapping up the rest of the federal criminal election subversion investigation, which Smith says is ongoing. No matter what the ruling is in each of the cases, the losing party will have the option to appeal it, setting up that the US Supreme Court might ultimately get involved.
Here’s what to know about the three pending appeals court cases that court affect the Smith’s prosecution of Trump:
A rioter’s challenge to how the Justice Department used a federal witness tampering statute to prosecute him has yet to be decided by the DC Circuit panel that heard the case in May.
A provision in the statute that criminalizes corrupt efforts to obstruct official proceedings has been a staple of the Capitol rioter prosecutions. It also provided the basis of two charges Smith brought against the former president. What the appeals court says about using the obstruction law to prosecute January 6 rioters could have major implications for Trump’s case, and his ability to seeks its dismissal.
The pending challenge is not the only case concerning the scope of the obstruction law that has made it to the DC Circuit, and a separate appellate panel said in April that the obstruction provision could cover a “wide range of conduct” that corruptly targeted the congressional certification vote.
In this case, rioter Thomas Robertson is focused on how the word “corruptly” in the statute should be interpreted. He claims that it should only apply to defendants who acted “dishonestly, to benefit themselves” and his arguments to the DC Circuit sought to distinguish him from how Trump may have personally benefited from the January 6 riot.
The case is before US Circuit Judges Karen Henderson, Nina Pillard and Florence Pan, the latter two having been appointed to the bench by then-President Barack Obama and President Joe Biden, respectively.
The DC Circuit has yet to decide whether investigators can access certain data from a phone of Perry’s that the FBI seized a year ago. Perry, a Pennsylvania Republican congressman, filed a lawsuit to block their access under the Constitution’s Speech or Debate Clause, which shields legislators from certain law enforcement actions connected to conduct they do as part of their legislative duties.
Perry popped up on several occasions in the report from the House January 6 select committee, which identified him as a liaison between Trump and key players in the election subversion plots. One of those individuals was former DOJ official Jeffrey Clark, an apparent unindicted co-conspirator in Smith’s indictment against Trump, though Perry himself is not mentioned or alluded to in the federal criminal charging documents.
Some of the legal dispute over the FBI’s search of Perry’s phone remains under seal. However, the appeals court held a portion of its February argument in the case in public. At the hearing, which was before Trump appointed circuit judges Gregory Katsas and Neomi Rao, and Ronald Reagan-appointed Henderson, the judges had tough questions for both sides of the case.
What the DC Circuit says will likely affect not just prosecutors’ pursuit of information from Perry’s phone, and what the special counsel can obtain of his communications with alleged conspirators or Trump himself, future law enforcement efforts that touch on members of Congress, both in the 2020 election context and in other criminal investigations down the road.
A decision awaits in a dispute heard by the DC Circuit last December over whether Trump enjoys sweeping immunity in the several civil lawsuits that have been brought against him – by Democratic members of Congress and by Capitol law enforcement – for allegedly egging on the mob that interrupted Congress’ January 6 certification ceremony and led to the injury of hundreds of police officers.
A trial judge said last year that Trump should not be immune, greenlighting the cases to move towards a trial. That ruling is now being reviewed by an appellate panel made up of Circuit Judges Sri Srinivasan, Katsas and Judith Rogers, who are appointees of Presidents Obama, Trump and Bill Clinton, respectively.
Lawyers for Trump are arguing that he should be shielded from the lawsuits to protect a president’s ability to comment on matters of public concern, which they say is part of his duties in office.
The Justice Department, which was invited to weigh in after the oral arguments, has tread a fine line. The department called on the DC Circuit to reject Trump’s broad immunity claims and argued that the president cannot be absolutely immune for speech on a matter of public concern if the speech is found to have incited violence – an early signal in court that the Justice Department would look critically at Trump’s actions after the 2020 election and not defend him as acting within his duties as president.
However, Smith’s case as a criminal prosecution differs to the approach taken by the civil litigants in other ways. The special counsel has not brought any incitement charge against the former president; Smith’s prosecutors framed their charging documents in a way that sought to draw a distinction between Trump conduct protected by free speech rights and what they said were unlawful actions to overturn his 2020 defeat.
Still the ruling on Trump’s civil immunity could shape the defense the former president puts up in the criminal case and the way that prosecutors respond to that defense.