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      Defeating Trump Is Just a Start

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      The easy and obvious way to understand the various Republican power grabs underway in states across the country is to look at them as attempts to secure as much unaccountable political power as possible and to curtail the expression of identities and beliefs Republicans find objectionable. That’s how we get the “Don’t Say Gay” laws and attacks on gender-affirming care and aggressive efforts to gerrymander entire state legislatures.But there is another angle you can take on the Republican use of state power to limit political representation for their opponents or limit the bodily autonomy of women or impose traditional and hierarchical gender relations on those who would prefer to live free of them. You could say the point is the cultivation of political despair.Now, it is too much to say that this is premeditated, although you do not have to look hard to find Republican officeholders expressing the belief that political participation should be made more onerous.At the same time, it is hard not to miss the degree to which attempts to nullify popular referendums or redistrict opponents into irrelevance can also work to inculcate a sense of hopelessness in those who might otherwise seek political change. Yes, it is true that many people will push back when faced with a sustained challenge to their right to participate in political life or exercise other fundamental rights. But many people will resign themselves to the new status quo, persuading themselves that nothing has fundamentally changed or concluding that it is not worth the time or effort involved to pick up the fight.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

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      The Supreme Court Can Stop Trump’s Delay Game

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      This is a good week to remember that, in the hours after Senate Republicans refused to convict Donald Trump for inciting the Jan. 6 Capitol attack, Mitch McConnell, then the majority leader, offered a hint of future comeuppance for the former president. Mr. Trump, he said, was still liable for everything he did as president.“He didn’t get away with anything yet — yet,” Mr. McConnell said on the Senate floor on Feb. 13, 2021. “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”Almost three years later, we are approaching the moment of truth. Mr. Trump, under federal indictment for his role in the insurrection, is attempting to evade legal accountability as he always has, by delay and misdirection.On Monday night, the case reached the Supreme Court, where litigation is normally measured in months, if not years. That’s understandable, especially when legal issues are complex or involve matters of great public significance. The course of justice is slow and steady, as the tortoise sculptures scattered around the court’s building at One First Street symbolize.But sometimes time is of the essence. That’s the case now, as the court weighs whether to expedite the case against Mr. Trump, who is trying to get his criminal charges thrown out a few weeks before the Republican primaries begin, and less than a year before the 2024 election.Last week after the federal trial judge, Tanya Chutkan, rejected Mr. Trump’s legal arguments that he is immune from prosecution, he appealed to the federal appeals court in Washington, a process that he clearly hoped would add weeks of delay. The special counsel Jack Smith countered by going directly to the Supreme Court, asking the justices to take the case away from the appeals court and rule quickly.It was, he acknowledged, “an extraordinary request” for “an extraordinary case.” The justices took the hint, ordering Mr. Trump to file his response by next week — lightning speed compared to the court’s usual pace.The prosecution was further complicated on Wednesday, when the justices agreed to hear a case challenging the government’s reliance on a particular obstruction charge against hundreds of Jan. 6 attackers, and against Mr. Trump himself.Prosecuting a presidential candidate during a campaign is not an ideal situation. Still, the justices were right not to sit on Mr. Smith’s appeal. The American people deserve to know, well before they head to the polls, whether one of the two probable major-party candidates for president is a convicted criminal — whether he is guilty, no less, of conspiring to subvert the outcome of a free and fair election to keep himself in power. The Jan. 6 trial — one of four Mr. Trump is expected to face over the coming months, and arguably the most consequential of all — is scheduled to start in early March, and it cannot move forward until the court decides whether he as a former president is immune from prosecution for his actions in office.The good news is there’s nothing stopping them. The justices are fully capable of acting fast when the circumstances demand. Consider the 2000 presidential election: the dispute over Florida’s vote count rocketed up to the court not once but twice in a matter of days in early December. The court issued its final opinion in Bush v. Gore, which was 61 pages in all, including dissents, barely 24 hours after hearing oral arguments.In 1974, the court managed to decide another hugely consequential case involving the presidency — Richard Nixon’s refusal to turn over his secret Oval Office tapes — over the course of a few weeks in June and July. The court’s ruling, which came out during its summer recess, went against Mr. Nixon and led to his resignation shortly after.The stakes in both cases were extraordinary, effectively deciding who would (or would not) be president. In both cases, the justices knew the country was waiting on them, and they showed they have no trouble resolving a legal dispute rapidly. The Jan. 6 charges against Mr. Trump are similarly consequential. Never in American history has a sitting president interfered with the peaceful transfer of power. No matter their positions on Mr. Trump and his eligibility to run again, all Americans have a compelling interest in getting a verdict in this case before the election.For that to happen, the Supreme Court needs to rule on Mr. Trump’s claim of executive immunity, one of a narrow category of appeals that can stop a trial in its tracks rather than having to wait until after conviction to be filed. The former president’s argument is that his actions to overturn the election were taken in the course of his official duties, and thus that he is absolutely immune from prosecution for them. It’s an absurd claim, as Judge Chutkan explained in denying it on Dec. 1.“Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote. “Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”Mr. Trump made two additional arguments, involving double jeopardy and the First Amendment, that were even weaker than the immunity claim, and Judge Chutkan denied those as well. She was probably tempted to toss out all of them as frivolous, as so many of Mr. Trump’s delaying tactics, dressed up as legal arguments, turn out to be. Instead she erred on the side of caution because no one has ever made such arguments, so there is no legal precedent for assessing their validity.Of course, the reason no one has made these arguments is that no former president has been criminally charged before. This is classic Trump, freeloading on everyone else’s respect for the law. You can drive 100 m.p.h. down the highway only if you are confident the other cars will stay in their lanes.The irony is that, even as he seeks to delay and obstruct the justice system, Mr. Trump is bolstering the case for a speedy trial thanks to his repeated threatening outbursts on social media. He has attacked the judge, the prosecutor and others, including those who are likely to testify against him. Statements like those endanger the safety of witnesses and the basic fairness of the trial, and have resulted in a gag order against the former president, but they are routine for a man who has spent a lifetime acting out and daring decent Americans everywhere to do something, anything, to stop him.“He keeps challenging the system to hold him accountable,” Kristy Parker of Protect Democracy, a nonpartisan advocacy group, told me. Most any other defendant who behaved in this way would risk being thrown in jail for violating the conditions of their bail, she said, but “no one wants to see him locked up prior to trial. It’s not going to be good for American society.”She was referring to the propensity for threats and violence that Mr. Trump’s supporters, egged on by their overlord, have shown in the face of any attempt to hold him to account. At this point, however, many Americans have accepted that risk as part of the price of cleansing the nation of a uniquely malicious political figure. We know the violence is coming, just as we know Mr. Trump will claim that any election he doesn’t win is rigged against him.“The best way to do anything about this is to have the trial soon,” Ms. Parker said. Right now, there are nine people in America who can help guarantee that is what happens.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Instagram, TikTok, X and Threads. More

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      La Corte Suprema analizará el cargo de obstrucción en el caso de Trump por el asalto del 6 de enero

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      La decisión de admitir el caso complicará y quizá retrase el inicio del juicio de Trump, que ahora está previsto que se celebre en Washington en marzo.La Corte Suprema aceptó el miércoles analizar un caso que podría poner en entredicho el procesamiento de cientos de alborotadores que irrumpieron en el Capitolio el 6 de enero de 2021 y retrasar —o limitar el alcance— del juicio del expresidente Donald Trump por cargos federales de intentar anular su derrota electoral.Lo que está en juego es si el gobierno puede acusar a los imputados en los casos en virtud de una ley federal que tipifica como delito la obstrucción corrupta de un procedimiento oficial. La ley está en el centro de los procesamientos de muchos partidarios de Trump que, en 2020, trataron de bloquear la certificación de la victoria de Joe Biden en el Congreso. También es una parte clave del proceso federal que acusa a Trump de conspirar para mantenerse en el poder, a pesar de la voluntad de los votantes.La decisión de admitir el caso complicará y quizá retrase el inicio del juicio de Trump, que ahora está previsto que se celebre en Washington en marzo. Es probable que la sentencia definitiva de la Corte Suprema, que es posible que no se produzca hasta junio, aborde la viabilidad de dos de los principales cargos contra Trump. Y podría obstaculizar de manera grave los esfuerzos del fiscal especial, Jack Smith, para responsabilizar al expresidente de la violencia desatada por sus partidarios en el Capitolio.La eventual decisión de la corte también podría invalidar las condenas que ya se han dictado contra decenas de seguidores de Trump que participaron en el asalto. Eso supondría un duro golpe para las acusaciones del gobierno en los casos de los disturbios del 6 de enero.El caso que la corte admitió afecta a Joseph Fischer, acusado de siete cargos por su participación en el ataque al Capitolio. Los fiscales afirman que agredió a la policía mientras el Congreso se reunía para certificar los resultados de las elecciones de 2020. Al igual que otros cientos de alborotadores cuyas acciones perturbaron el procedimiento de certificación en el Capitolio, Fischer fue acusado del cargo de obstrucción, formalmente conocido como 18, USC, 1512.Fischer solicitó la desestimación de una parte de la acusación presentada en virtud de la ley de obstrucción, que se aprobó como parte de la Ley Sarbanes-Oxley de 2002, una medida dirigida principalmente contra los delitos de cuello blanco. Los fiscales han utilizado habitualmente la acusación de obstrucción, en lugar de cargos más polémicos como insurrección o conspiración sediciosa, para describir cómo los miembros de la turba pro-Trump perturbaron el traspaso pacífico del poder presidencial.El año pasado, el juez Carl J. Nichols, del Tribunal Federal de Distrito de Washington, accedió a la petición de desestimación de Fischer, afirmando que la ley exigía que los acusados realizaran “alguna acción con respecto a un documento, registro u otro objeto”, algo que, según él, faltaba en la conducta de Fischer en el Capitolio.Un panel dividido de tres jueces del Tribunal de Apelaciones de EE. UU. para el Circuito del Distrito de Columbia revocó finalmente la decisión del juez Nichols, dictaminando que la ley “se aplica a todas las formas de obstrucción corrupta de un procedimiento oficial”. Tres acusados del 6 de enero, entre ellos Fischer, le pidieron finalmente a la Corte Suprema que decidiera si la ley se había aplicado correctamente en el caso del Capitolio.La acusación de obstrucción nunca fue fácil de incluir en los casos derivados del asalto al Capitolio. Cuando se aprobó a principios de la década de 2000, la ley pretendía frenar la prevaricación empresarial al prohibir cosas como la destrucción de documentos o la manipulación de testigos o pruebas.Los abogados defensores que representan a los alborotadores del 6 de enero han argumentado que los fiscales federales ampliaron indebidamente su alcance para abarcar la violencia que estalló en el Capitolio e interfirió en el procedimiento en el que los legisladores se habían reunido para certificar los resultados de las elecciones.Los abogados también discreparon con el uso de la acusación contra las personas que irrumpieron en el Capitolio, afirmando que muchas no actuaban de forma “corrupta”, como exige la ley, porque creían que protestaban contra unas elecciones robadas.“La ley se ha utilizado para criminalizar en exceso los casos del 6 de enero”, dijo Norm Pattis, abogado de Jake Lang, uno de los tres acusados que recurrieron a la Corte Suprema. “El Congreso nunca pretendió eso”.Pattis dijo que la revisión de la corte era “significativa” en cientos de causas penales derivadas de la revuelta del Capitolio y que era “una razón más para retrasar la causa de 2024 contra Donald Trump”.Dos de los cuatro cargos de la acusación federal de interferencia electoral contra Trump se basan en el cargo de obstrucción. Se le acusa de obstruir personalmente el procedimiento de certificación en el Capitolio el 6 de enero y también se enfrenta a un cargo de conspirar con otras personas para obstruir el procedimiento.La revisión de la corte, aunque es potencialmente perjudicial para la acusación, no afectaría a los otros dos cargos contra Trump. Uno de ellos lo acusa de conspirar para defraudar a Estados Unidos mediante la mentira de que le habían robado las elecciones, en un esfuerzo por revertir su derrota. El otro lo acusa de conspirar para privar a millones de estadounidenses del derecho a que se cuenten sus votos.Sin embargo, si la Corte Suprema determina que la ley de obstrucción no se aplica al ataque de la turba en el Capitolio, podría paralizar los planes de Smith de responsabilizar a Trump de la violencia.Documentos judiciales recientes sobre el caso de las elecciones han sugerido claramente que los fiscales planeaban utilizar la acusación de obstrucción para mostrar al jurado videos gráficos del ataque al Capitolio y tal vez introducir el testimonio de los alborotadores que afirman que asaltaron el edificio siguiendo instrucciones de Trump.La posibilidad de que la corte revise —y pueda invalidar— el recuento de obstrucción se ha cernido sobre el caso de las elecciones de Trump durante meses. Pero la reciente decisión de la corte se produjo en un momento especialmente delicado: dos días después de que Smith pidiera a los jueces que aceleraran la apelación de los distintos intentos de Trump de anular el caso basándose en alegaciones de inmunidad presidencial.Aunque la Corte Suprema aún no ha decidido si considerará los argumentos de inmunidad de Trump, en una semana se ha visto profundamente implicado en el procedimiento de injerencia electoral. Sus decisiones sobre la acusación de obstrucción y sobre la inmunidad podrían alterar radicalmente la forma, el alcance y el calendario del caso, que durante mucho tiempo ha parecido que sería la primera de las cuatro acusaciones a las que se enfrentaría Trump.La fiscala general, Elizabeth Prelogar, había instado a los jueces a denegar la revisión del caso, alegando que la ley era lo suficientemente amplia como para abarcar las acciones de Fischer aunque no se vieran afectados documentos u otros objetos.“Un acusado obstruye un procedimiento oficial impidiendo físicamente que se lleve a cabo, como ocurrió aquí cuando los demandantes y otras personas ocuparon violentamente el Capitolio durante varias horas e impidieron así que la sesión conjunta del Congreso realizara su trabajo”, escribió.Añadió que, en cualquier caso, se trataba de documentos.“Impedir que los miembros del Congreso validaran los certificados estatales constituye, por tanto, una obstrucción centrada en las pruebas”, escribió, añadiendo que la revisión era prematura. “Como mínimo, debería permitirse al gobierno presentar su caso ante un jurado y demostrar que los peticionarios obstruyeron un procedimiento impidiendo (en parte) que los responsables de la toma de decisiones pertinentes vieran las pruebas en el momento y lugar especificados para ese efecto”.Independientemente de cómo se pronuncie finalmente la Corte Suprema, es probable que los abogados de Trump utilicen su decisión de revisar la acusación de obstrucción para reforzar sus argumentos de que el juicio en Washington debería aplazarse, quizá hasta después de que se decida la campaña presidencial de 2024.Desde el inicio del caso, Trump ha seguido una persistente estrategia de retraso. Si puede retrasar el juicio hasta después de las elecciones y ganar la contienda, estaría en condiciones de ordenar sencillamente que se retiraran los cargos contra él.Alan Feuer cubre el extremismo y la violencia política para el Times, centrándose en los casos penales relacionados con el atentado del 6 de enero en el Capitolio y contra el expresidente Donald Trump. Más sobre Alan FeuerAdam Liptak cubre la Corte Suprema y escribe Sidebar, una columna sobre novedades jurídicas. Licenciado por la Facultad de Derecho de Yale, ejerció la abogacía durante 14 años antes de incorporarse al Times en 2002. Más sobre Adam Liptak More

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      Judge Pauses Trump Election Case Amid Appeal of Immunity Issue

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      The decision by the judge to freeze the case came as the former president’s lawyers asked an appeals court to move slowly in considering his claims that he is immune from prosecution.A federal judge on Wednesday put on hold all of the proceedings in former President Donald J. Trump’s trial on charges of plotting to overturn the 2020 election as his lawyers asked an appeals court to move slowly in considering his claim that he is immune from prosecution in the case.The separate but related moves were part of an ongoing struggle between Mr. Trump’s legal team and prosecutors working for the special counsel, Jack Smith, over the critical question of when the trial will actually be held. It is now scheduled to begin in Washington in March.On Wednesday morning, Mr. Trump’s lawyers asked the federal appeals court to avoid setting an expedited schedule as it considered whether to dismiss the election subversion charges based on the former president’s sweeping claims of executive immunity.In a 16-page filing that blended legal and political arguments, the lawyers asked a three-judge panel of the court not to move too quickly in mulling the question of immunity, saying that a “reckless rush to judgment” would “irreparably undermine public confidence in the judicial system.”“The manifest public interest lies in the court’s careful and deliberate consideration of these momentous issues with the utmost care and diligence,” wrote D. John Sauer, a lawyer who is handling the appeal for Mr. Trump.On Wednesday afternoon, the trial judge overseeing the election case, Tanya S. Chutkan, handed Mr. Trump a victory by suspending all “further proceedings that would move this case towards trial” until the appeal of the immunity issue is resolved.Mr. Trump’s lawyers had requested the pause when they first decided to challenge Judge Chutkan’s rejection of the former president’s immunity claim. Mr. Trump had argued in his initial motion to dismiss the case that he was “absolutely immune” to the election interference charges because they were based on actions he took while he was in office.The former president’s filing to the U.S. Court of Appeals for the District of Columbia Circuit came two days after prosecutors working for Mr. Smith asked the same judges to fast-track the appeal. The prosecutors argued that keeping the underlying case moving forward would vindicate the public’s interest in a speedy trial.Mr. Smith has also filed a parallel request to the Supreme Court, asking the justices to consider the immunity issue even before the appeals court does and to issue their decision quickly. Mr. Trump’s lawyers have until Dec. 20 to respond to that request.In another move on Wednesday, the Supreme Court agreed to hear a separate case with a bearing on Mr. Trump’s prosecution. The court said it would consider whether the former president and hundreds of people who have been prosecuted for the Jan. 6, 2021, assault on the Capitol can be charged in those cases under a federal law that makes it a crime to corruptly obstruct or impede an official proceeding.Winning the appeal of the immunity issue has been only one of Mr. Trump’s goals. All along, he and his lawyers have had an alternate strategy: to delay the trial on election interference charges for as long as possible.If Mr. Trump is able to postpone the trial until after next year’s election and ultimately wins the race, he will have the power to simply order the charges to be dropped. Holding a trial after the race would also mean that voters would not have had a chance to hear any of the evidence that prosecutors collected about Mr. Trump’s expansive efforts to reverse the results of the previous election.Mr. Smith’s team has never explicitly suggested that they are worried that if Mr. Trump is re-elected he will use his political victory as a means to quash his legal problems. Instead, they have framed their concerns about the scheduling of the case in a different way, saying they are seeking to protect the enormous public interest in seeing the case resolved in a timely fashion.Mr. Sauer rejected that position in his filing to the appeals court, accusing Mr. Smith of using the case to damage Mr. Trump’s candidacy.“The date of March 4, 2024, has no talismanic significance,” he wrote. “Aside from the prosecution’s unlawful partisan motives, there is no compelling reason that date must be maintained.”Mr. Trump’s lawyers have long complained that the trial is itself a form of election interference. They say that the scheduled start date of March 4 is just one day before Super Tuesday, the most important date in the primary election season.Mr. Trump’s legal team has used its immunity appeal to launch political attacks against Mr. Smith and the Biden administration and cast the indictment as a partisan effort to derail Mr. Trump’s third bid for the White House.“The prosecution has one goal in this case: to unlawfully attempt to try, convict and sentence President Trump before an election in which he is likely to defeat President Biden,” Mr. Sauer wrote. In his appellate papers, Mr. Sauer also complained that the sped-up schedule Mr. Smith has asked for would require Mr. Trump’s legal team to “work round-the-clock through the holidays.” “It is as if the special counsel growled, with his Grinch fingers nervously drumming, ‘I must find some way to keep Christmas from coming,’” Mr. Sauer wrote, quoting the famous Dr. Seuss book.In a sign of how just how fast they would like to move, prosecutors responded to Mr. Sauer’s filing within a matter of hours.“The public’s need for a speedy resolution of these important legal issues,” they wrote, “take precedence over personal scheduling issues.” More

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      Justices to Decide Scope of Obstruction Charge Central to Trump’s Jan. 6 Case

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      A ruling by the Supreme Court could affect the cases of hundreds of people charged in connection with the Capitol attack — and potentially the prosecution of Donald J. Trump.The Supreme Court agreed on Wednesday to hear a case that could upend the prosecutions of hundreds of rioters who stormed the Capitol on Jan. 6, 2021, and delay — or limit the scope of — former President Donald J. Trump’s trial on federal charges of trying to overturn his election defeat.At issue is whether the government can charge defendants in the cases under a federal law that makes it a crime to corruptly obstruct an official proceeding. The law is at the heart of the prosecutions of many members of the pro-Trump mob that sought to block the congressional certification of Joseph R. Biden Jr.’s victory in 2020. It is also a key part of the federal indictment accusing Mr. Trump of plotting to remain in power despite the will of the voters.The decision to hear the case will complicate and perhaps delay the start of Mr. Trump’s trial, now scheduled to take place in Washington in March. The Supreme Court’s ultimate ruling, which may not arrive until June, is likely to address the viability of two of the main counts against Mr. Trump. And it could severely hamper efforts by the special counsel, Jack Smith, to hold the former president accountable for the violence of his supporters at the Capitol.The court’s eventual decision could also invalidate convictions that have already been secured against scores of Mr. Trump’s followers who took part in the assault. That would be an enormous blow to the government’s prosecutions of the Jan. 6 riot cases.The case the court agreed to hear involves Joseph Fischer, who was indicted on seven charges for his role in the Capitol attack. Prosecutors say he assaulted the police as Congress met to certify the results of the 2020 election. Like hundreds of other rioters whose actions disrupted the certification proceeding in the Capitol, Mr. Fischer was charged with the obstruction count, formally known as 18 U.S.C. 1512.Mr. Fischer sought dismissal of a portion of the indictment brought under the obstruction law, which was passed as part of the Sarbanes-Oxley Act of 2002, a statute aimed primarily at white-collar crime. Prosecutors have routinely used the obstruction charge, in lieu of more politically contentious counts like insurrection or seditious conspiracy, to describe how members of the pro-Trump mob disrupted the peaceful transfer of presidential power.Last year, Judge Carl J. Nichols of the Federal District Court in Washington granted Mr. Fischer’s motion to dismiss, saying that the law required defendants to take “some action with respect to a document, record or other object” — something he said was missing from Mr. Fischer’s conduct at the Capitol.A divided three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit eventually reversed Judge Nichols’s decision, ruling that the law “applies to all forms of corrupt obstruction of an official proceeding.” Three Jan. 6 defendants, including Mr. Fischer, ultimately asked the Supreme Court to decide whether the law had been properly applied to the Capitol attack.The obstruction charge was never an easy fit in the cases stemming from the storming of the Capitol. When it was passed in the early 2000s, the law was aimed at curbing corporate malfeasance by outlawing things like destroying documents or tampering with witnesses or evidence.Defense lawyers representing Jan. 6 rioters have argued that federal prosecutors improperly stretched its scope to cover the violence that erupted at the Capitol and interfered with the proceeding in which lawmakers had gathered to certify the results of the election.The lawyers also took issue with using the charge against people who stormed the Capitol, saying that many were not acting “corruptly,” as the law requires, because they believed they were protesting a stolen election.“The statute has been used to over-criminalize the Jan. 6 cases,” said Norm Pattis, a lawyer for Jake Lang, one of the three defendants who appealed to the Supreme Court. “Congress never intended that.”Mr. Pattis said the Supreme Court’s review was “significant” in hundreds of criminal cases stemming from the Capitol riot and was “yet another reason the 2024 case against Donald Trump should be delayed.”Two of the four counts in the federal election interference indictment against Mr. Trump are based on the obstruction charge. He has been accused of personally obstructing the certification proceeding at the Capitol on Jan. 6 and faces a separate count of conspiring with others to obstruct the proceeding.The Supreme Court’s review, while potentially damaging to the indictment, would not affect the other two charges against Mr. Trump. One accuses him of conspiring to defraud the United States by using relentless lies that the election had been stolen from him in an effort to reverse his defeat. The other charges him with plotting to deprive millions of Americans of the right to have their votes counted.Still, if the Supreme Court finds that the obstruction law does not apply to the mob attack at the Capitol, it could cripple plans by Mr. Smith to pin the violence on Mr. Trump.Recent court papers in the election case have strongly suggested that prosecutors were planning to use the obstruction charge as a way to show the jury graphic videos of the Capitol attack and perhaps even introduce testimony from rioters claiming that they stormed the building on Mr. Trump’s instructions.The possibility that the Supreme Court could review — and one day invalidate — the obstruction count has been looming over Mr. Trump’s election case for months. But the court’s decision to act on Wednesday came at a particularly delicate moment: two days after Mr. Smith asked the justices to fast-track an appeal of Mr. Trump’s separate attempts to have the case tossed out on broad claims of presidential immunity.While the Supreme Court has not yet decided whether to consider Mr. Trump’s immunity arguments, it has — in the span of a week — become deeply entangled in the election interference proceeding. Its decisions on the obstruction charge and on immunity could radically alter the shape, scope and timing of the case, which has long seemed as though it would be the first of the four indictments Mr. Trump is facing to go before a jury.Solicitor General Elizabeth B. Prelogar had urged the justices to deny review in the case, saying the law was broad enough to cover Mr. Fischer’s actions even if no documents or other objects were affected.“A defendant obstructs an official proceeding by physically blocking it from occurring — as happened here when petitioners and others violently occupied the Capitol for several hours and thereby prevented the joint session of Congress from doing its work,” she wrote.She added that documents were at issue in the case in any event.“Preventing the members of Congress from validating the state certificates thus constitutes evidence-focused obstruction,” she wrote, adding that review was premature. “At a minimum, the government should be permitted to present its case to a jury and prove that petitioners obstructed a proceeding by (in part) preventing the relevant decision makers from viewing the evidence at the time and place specified for that purpose.”Regardless of how the Supreme Court ultimately rules, Mr. Trump’s lawyers are likely to use its decision to review the obstruction charge to bolster their arguments that the trial in Washington should be postponed, perhaps until after the 2024 presidential race is decided.From the start of the case, Mr. Trump has pursued a persistent strategy of delay. If he can push the trial until after the election and win the race, he would be in a position to simply order the charges against him to be dropped. More

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      Why Jack Smith Is Taking Trump’s Immunity Claim Straight to the Supreme Court

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      The special counsel has substantive and procedural reasons for wanting a quick ruling on whether Donald Trump can be prosecuted for his actions as president.Jack Smith, the special counsel who has brought two cases against former President Donald J. Trump, made a bold move this week designed to undercut one of Mr. Trump’s chief defenses against accusations of plotting to overturn the 2020 election.Mr. Smith asked the Supreme Court to rule on Mr. Trump’s attempts to have the election subversion charges dismissed on a sweeping claim of executive immunity before a lower appeals court even has the chance to consider the issue.Mr. Smith also asked the justices to make their decision quickly.“The United States recognizes that this is an extraordinary request,” he told the Supreme Court in a petition filed on Monday.But there was a reason it was needed.“This is an extraordinary case,” he wrote.Here is a look at the intersecting legal and political issues surrounding the special counsel’s move.What does Mr. Smith want the Supreme Court to do?He made two separate requests.First, he asked the justices to consider a legal issue they have never looked at before: whether the Constitution confers absolute immunity on a former president against a federal prosecution for crimes he committed while in office.Mr. Trump put that argument at the center of his initial motion to dismiss the election case, which he filed in October in Federal District Court in Washington. He contended that because the charges were based on official actions he took while in the White House, the indictment in its entirety had to be thrown out.Judge Tanya S. Chutkan, who is handling the case, disagreed and rejected the motion two weeks ago. Mr. Trump’s lawyers challenged her decision in the normal way in front of a federal appeals court in Washington and also asked her to freeze the case while the appeal was being heard.Mr. Smith asked the Supreme Court to step in front of an appeals court to rule on former President Donald J. Trump’s claims of immunity.Haiyun Jiang for The New York TimesWhile the lawyers obviously hoped to win the appeal, they also had another goal: to drag out the process for as long as possible and postpone a trial on the election interference charges.It was that delay strategy that appeared to underlie Mr. Smith’s second request to the Supreme Court. He asked the justices not only to rule on the immunity issue before the lower appeals court did, but also to do so on an expedited basis.Mr. Smith told the justices that an ordinary, even a relatively fast, appeal could take too much time. And he expressed concern in particular about keeping the trial, now set to go before a jury on March 4, more or less on schedule.What could happen if the trial is delayed?It depends on whom you ask and how long the trial is postponed.A significant delay could push the trial into summer or fall — the heart of the 2024 campaign season. That could cause problems for Mr. Trump because he would be obliged to attend the trial in Washington every weekday for two or three months when he could be holding rallies or meeting voters.Mr. Trump would likely respond to such a situation by bringing his campaign to the steps of the federal courthouse. He would almost certainly hold daily news conferences in front of the television cameras that would await his exit from the courtroom and use them to deliver his political talking points and attack the legal proceeding. He has employed a similar strategy during the civil fraud trial in New York in which he is accused of inflating his company’s net worth.There could also be serious consequences, however, if the trial is pushed off until after the election.If that happens and Mr. Trump wins the race, he would suddenly have the power to order the charges to be dropped. Moreover, millions of voters would never get to hear the evidence that Mr. Smith’s team collected about Mr. Trump’s efforts to subvert the last election before making a decision about whether to elect him again.What do we know about whether the Supreme Court will take the case on an expedited basis?It would require only four of the nine justices to come together for Mr. Smith’s request to be granted. Shortly after Mr. Smith filed his petition, the court issued an order telling Mr. Trump’s legal team to respond with their opinions on the issue by Dec. 20. While the schedule the justices set gave no indication of whether they might ultimately take the case, it did seem to suggest that the court was not inclined to drag its feet in reaching a decision.A significant delay in the case could plunge the trial into the heart of Mr. Trump’s 2024 campaign.Hilary Swift for The New York TimesHistorically speaking, the Supreme Court has only rarely stepped in front of lower appeals courts by using the procedure known as “certiorari before judgment.” Before 2019, the court had not used the provision for 15 years, according to statistics compiled by Stephen Vladeck, a law professor at the University of Texas. But as of late last year, the court had used it 19 times since.The procedure has been used in cases involving national crises, like President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor during a criminal investigation.Mr. Smith urged the court to use it in Mr. Trump’s criminal case as well, saying that the proceeding involved “issues of exceptional national importance.”How sympathetic has this Supreme Court been to Trump in such cases?While the court’s current majority has voted in favor of a number of staunchly conservative policies, from striking down abortion rights to reversing affirmative action, it has shown less of an appetite for supporting Mr. Trump’s attempts to monkey with the democratic process.Just months before Mr. Trump appointed his third Supreme Court justice, the court ruled by a 7-to-2 vote in 2020 that he had no absolute right to block the release of his financial records from investigators in a criminal inquiry.“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. wrote for the majority.That same year, in a brief unsigned order, the court rejected a lawsuit filed by the state of Texas seeking to throw out the election results in four battleground states that Mr. Trump had lost. It also declined requests to review suits filed by pro-Trump lawyers claiming that voting machines across the country had been hacked by a cabal of foreign actors to flip votes away from Mr. Trump.Last year, the Supreme Court refused a request from Mr. Trump to block the release of White House records concerning the Jan. 6 attack on the Capitol, effectively rejecting his claims of executive privilege.The court’s unsigned order upheld the original decision made in the case by none other than Judge Chutkan. And she had scathing words for Mr. Trump in her initial decision rejecting his claims of executive privilege.“Presidents are not kings,” she wrote, “and plaintiff is not president.”What could happen next?If the Supreme Court takes the case and agrees with Mr. Trump’s immunity claims, then the indictment would be tossed out and there would be no trial on the election interference charges. But if the court hears the case and quickly sides with Mr. Smith, a trial would be held, likely before the election.On the other hand, if the justices decline to hear the case at this stage, then it would go back to the U.S. Court of Appeals for the District of Columbia Circuit. But the Supreme Court could eventually come back into the picture and consider challenges to the decision of the appeals court. More

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      Special Counsel Asks Supreme Court to Decide if Trump Is Immune From Prosecution

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      The special counsel, Jack Smith, urged the justices to move with exceptional speed, and they quickly agreed to fast-track the first phase of the case.Jack Smith, the special counsel prosecuting former President Donald J. Trump on charges of plotting to overturn the 2020 election, asked the Supreme Court on Monday to rule on Mr. Trump’s argument that he is immune from prosecution. The justices quickly agreed to fast-track the first phase of the case.Mr. Smith’s request was unusual in two ways: He asked the justices to rule before an appeals court acted, and he urged them to move with exceptional speed.“This case presents a fundamental question at the heart of our democracy: whether a former president is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin,” Mr. Smith wrote.On Monday evening, just hours after Mr. Smith filed papers in the Supreme Court, the justices granted his initial request: to put their consideration of whether to hear the case on a fast track. The court ordered Mr. Trump’s lawyers to file their response to the petition seeking review on an abbreviated schedule, by Dec. 20.Mr. Smith’s filings represented a vigorous plea to keep the trial on track by cutting off an avenue by which Mr. Trump could cause delays.A speedy decision by the justices is of the essence, Mr. Smith wrote, because Mr. Trump’s appeal of a trial judge’s ruling rejecting his claim of immunity suspends the criminal trial. The proceeding is scheduled to begin on March 4 in Federal District Court in Washington.Any significant delays could plunge the trial into the heart of the 2024 campaign season or push it past the election, when Mr. Trump could order the charges be dropped if he wins the presidency.“The United States recognizes that this is an extraordinary request,” Mr. Smith wrote. “This is an extraordinary case.”The trial judge, Tanya S. Chutkan, rejected Mr. Trump’s sweeping claims that he enjoyed “absolute immunity” from the election interference indictment because it was based on actions he took while in office.In her ruling two weeks ago, she condemned his attempts to “usurp the reins of government” and said there was nothing in the Constitution or American history supporting the proposition that a former president should not be bound by the federal criminal law.Mr. Trump appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. He also asked Judge Chutkan to freeze the election interference case in its entirety until the appeal was resolved.In his Supreme Court brief, Mr. Smith conceded that the election case could not be decided until after the appeal of the immunity issue was resolved. On Sunday, his team filed papers to Judge Chutkan asking her to keep the March 4 trial date and saying she could still work on certain aspects of the case even as the appeal was being heard.In what appeared to be an attempt to cover all bases, Mr. Smith’s team also filed a request to the appeals court in Washington on Monday to decide the immunity question quickly. Winning the appeal of the immunity decision was only one of Mr. Trump’s goals in challenging Judge Chutkan’s ruling. All along, he and his lawyers have had an alterative strategy: to delay the trial for as long as possible.If the trial were put off until after the election and Mr. Trump were to win, he could have his attorney general simply dismiss the charges. Holding a trial after the presidential race was over would also mean that voters would not get to hear any of the evidence that prosecutors have collected about Mr. Trump’s expansive efforts to reverse the results of the last election before weighing in on whether to elect him again in 2024.Even if Mr. Trump’s lawyers are unable to postpone the trial until after the presidential race was decided, they are hoping to push it off until the heart of the campaign season in August or September.That would present Judge Chutkan with a difficult decision: Should she hold the trial at a time Mr. Trump could be out holding rallies and meeting voters and suffer what are sure to be his vociferous complaints or make the decision herself to delay the trial after the race is over?Mr. Smith urged the justices to move fast.He asked the court to use an unusual procedure to leapfrog the appeals court, “certiorari before judgment.” It has been used in cases involving national crises, like President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor or President Harry S. Truman’s seizure of the steel industry.The procedure used to be rare. Before 2019, the court had not used it for 15 years, according to statistics compiled by Stephen Vladeck, a law professor at the University of Texas at Austin. As of late last year, he found, the court has used it 19 times since.Among recent examples in which the court bypassed appeals courts were cases on abortion, affirmative action and student debt forgiveness.A statement from Mr. Trump’s campaign called the request by Mr. Smith a “Hail Mary” attempt to get to the Supreme Court and “bypass the appellate process.”Derek Muller, a law professor at Notre Dame, said the procedure remained unusual.“It’s always a long-shot bid for the Supreme Court to hear a case like this, without waiting for the process to play out in the lower courts,” he said. “That said, Smith is rightly concerned about a slow appeals process that may interfere with a trial date and run even closer to Election Day. It seems unlikely it will persuade the Supreme Court to intervene, but it is worth asking given the risks of delay.”Mr. Smith’s request was based on an argument that prosecutors have used several times in the election interference case: that the public itself, not just the defendant, Mr. Trump, has a fundamental right to a speedy trial.As in the Nixon tapes case, Mr. Smith wrote, “the circumstances warrant expedited proceedings,” adding: “The public importance of the issues, the imminence of the scheduled trial date and the need for a prompt and final resolution of respondent’s immunity claims counsel in favor of this court’s expedited review at this time.”Mr. Smith asked the Supreme Court to consider a question it has never addressed before: whether the Constitution confers presidential immunity from criminal prosecution.Mr. Smith acknowledged that the Supreme Court said in 1982 that former presidents enjoy some special protections, at least in civil suits — ones from private litigants seeking money — and that the Justice Department has long taken the view that sitting presidents cannot be indicted.“But those principles cannot be extended to provide the absolute shield from criminal liability that respondent, a former president, asserts,” Mr. Smith wrote. “Neither the separation of powers nor respondent’s acquittal in impeachment proceedings lifts him above the reach of federal criminal law. Like other citizens, he is accountable for criminal conduct.”Mr. Trump’s lawyers rely heavily on the 1982 decision, also involving Nixon, Nixon v. Fitzgerald. It was brought by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns. By the time the Supreme Court acted, Nixon had been out of office for several years.By a 5-to-4 vote, the justices ruled for Nixon. “In view of the special nature of the president’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority, “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”Other Supreme Court precedents seem to be of no help to Mr. Trump.In Clinton v. Jones in 1997, the court unanimously allowed a sexual harassment suit against President Bill Clinton to proceed while he was in office, discounting concerns that it would distract him from his official responsibilities. That was also a civil case.And more recently, the Supreme Court ruled by a 7-to-2 vote in Trump v. Vance in 2020 that Mr. Trump had no absolute right to block the release of his financial records in a criminal investigation.“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. wrote for the majority.In separate court papers filed on Monday, prosecutors working for Mr. Smith told Judge Chutkan that they intend to call expert witnesses during the election interference trial who will testify about the movement on Jan. 6 of Mr. Trump’s supporters from his incendiary speech near the White House — during which he urged them to “fight like hell” — to the Capitol.Prosecutors said they also planned to call a witness who could talk about the specific times that day when Mr. Trump’s Twitter account was in use.That could mean that the government will seek to provide the jury with the connections between Mr. Trump’s speech and his Twitter messages on Jan. 6 and the movement of the mob toward the Capitol. More

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      I Clerked for Justice O’Connor. She Was My Hero, but I Worry About Her Legacy.

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      When I learned that Justice Sandra Day O’Connor had died, I felt not just the loss of a world historical figure but also the loss of someone who formed a part of my identity.As a young woman, I was in awe of Justice O’Connor. Her presence on the Supreme Court offered an answer to any doubts I had that I belonged in the law. As a young lawyer, I was lucky enough to work for a year as her law clerk.While clerking for her, I came to understand and appreciate not only her place in history but also her vision of the law. She refused opportunities to issue sweeping opinions that would substitute her ideals for the democratic process. This made it all the more tragic that toward the end of her career, she joined in a decision — Bush v. Gore — that represented a rejection of her cautious approach in favor of a starkly political one.For me, she stands as a shining example of how women — everyone, really — can approach life and work. I witnessed her warmth, humor and humanity while experiencing the gift of learning and seeing the law through her eyes. Those personal and legal impressions have left an enduring mark on me as a person and as a lawyer.At the time Justice O’Connor became a lawyer, women in that role were rare. As has now become familiar lore, after she graduated near the top of her class from Stanford Law School in 1952, she was unable to find work as a lawyer. As a justice, she made sure that opportunities denied to her were available to others. Shortly after I graduated from law school, I joined two other women and one man in her chambers, making a rare majority-woman chamber when just over a third of the clerks for Supreme Court justices were women.I always found it remarkable that I never heard Justice O’Connor talk with any bitterness of the barriers she faced pursuing her career. Instead, she worked hard and without drama to overcome them. Remarkably, that experience did not harden her.She had a wicked sense of humor. The door to our clerks’ office held a photocopied image of her hand with the words “For a pat on the back, lean here.” Her face transformed in an almost girlish way when she laughed, which she did often.When she met with the clerks on Saturday to discuss upcoming cases, she brought us a home-cooked lunch — often something inspired by her Western roots. (One memorable example was tortillas and a cheesy chicken filling, to make a kind of cross between a burrito and a chicken quesadilla. It was a bit of a mess to eat but delicious.) She insisted that we get out of the courthouse and walk with her to see the cherry blossoms, and she took us to one of her favorite museums; once we visited the National Arboretum and lingered at the bonsai exhibit. She believed firmly in the benefits of exercise, and she invited us to join daily aerobics sessions with a group of her friends early in the morning in the basketball court above the Supreme Court chamber, which she delighted in calling the “highest court in the land.”She was also a hopeless romantic, and she was well known for trying to find partners for her single clerks. She met her husband, John, in law school, and they married shortly after graduation. He had received an Alzheimer’s diagnosis when I clerked for her, though that knowledge was not yet public. He often came by her chambers as she worked to maintain a sense of normalcy. She retired in 2006 largely because of his progressing dementia. In a powerful lesson of what it is to love, she was happy for him when he struck up a romance with a fellow Alzheimer’s patient. It was devastating to learn that she was subsequently diagnosed with dementia herself.When I clerked for her in 1998 and ’99, she was at the height of her powers. She was the unquestioned swing justice, and some called her the most powerful woman in the world.But she approached the role with humility. Considered a minimalist, she worked to devise opinions that decided the case and usually little more. She was sometimes criticized for that approach. Justice Antonin Scalia made no secret of his frustration. When she refused to overturn Roe v. Wade, in the 1992 case Planned Parenthood v. Casey, he snarlingly referred to the opinion as a “jurisprudence of confusion.” She was criticized by many academics for failing to articulate a grand vision of the law.What they missed was that this was her grand vision of the law — or at least of the Supreme Court. She had spent the formative part of her career before she entered the court as a member of the Arizona State Legislature, where she rose to become the first female majority leader of a State Senate.She believed that the most important decisions about how to govern the country belonged to the political branches and to state legislatures, not to a court sitting in Washington. Seeing the law through her eyes during the year I worked for her, I realized that she was not looking for a sweeping theory that would change the face of the law. She wanted to decide the case before her and provide a bit of guidance to the lower courts as necessary but leave the rest to the democratic process.In December 2000, this made reading the opinion she joined in Bush v. Gore all the more heartbreaking. Her vote made a 5-to-4 majority for the decision to halt the recount in Florida rather than allow that process to play out, throwing the election to George W. Bush, who became the first president since 1888 to be elected without winning the popular vote. The decision, widely criticized for its shoddy reasoning, was the opposite of the careful, modest decisions she had spent her career crafting. It disenfranchised voters whose ballots had been rejected by ballot-counting machines in the interests of finality — in the process substituting the judgment of the court for the expressed will of the people.The court showed that it could — and would — behave in nakedly political ways. It had given into the temptation to engage in ends-driven reasoning that was utterly unpersuasive to those who did not already share its view of the right result. In doing so, the court might have opened the door to what has now become something of a habit.Justice O’Connor retired just over five years later, and she was replaced by Samuel Alito. It has been painful to watch as, in decision after decision, he has voted to undo much of the legacy she so carefully constructed. The blunt politics of Bush v. Gore now look less like an embarrassing outlier and more like a turning point toward a court that has cast aside Justice O’Connor’s cautious minimalism for a robustly unapologetic political view of the law. Unsurprisingly, public opinion of the court has fallen to a near historic low.Justice O’Connor remains a transformative figure in the law, a woman who charted a path that I and so many others have followed. If the court is to regain the public trust, it should look, once again, to her shining example, which embodied a powerful ideal: the court is not a body meant to enact the justices’ vision of what the law should be. Its role is, instead, to encourage our imperfect democracy to find its way forward on its own.Oona A. Hathaway is a professor of law and political science at Yale University and a nonresident scholar at the Carnegie Endowment for Peace.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Instagram, TikTok, X and Threads. More