Washington — The actions of Donald Trump and his supporters after his 2020 election loss top the US Supreme Court's agenda in the next two weeks in cases involving his bid to avoid prosecution for trying to undo his defeat and an attempt by a man indicted in the Capitol attack to escape a charge that Trump also faces.

The two cases assume even greater prominence as Trump campaigns to return to the White House as the Republican candidate challenging Democratic President Joe Biden in the November 5 US election.

The justices on Tuesday hear arguments in an appeal by Joseph Fischer, who was indicted on seven charges after the January 6 2021, Capitol riot including corruptly obstructing an official proceeding — congressional certification of Biden's victory over Trump. They then hear arguments on April 25 in Trump's assertion of presidential immunity from prosecution.

“The court has not yet directly addressed issues related to January 6,” said Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. “But Fischer and Trump so clearly raise issues arising from January 6.”

Trump took numerous steps to try to reverse his 2020 loss. His false claims of widespread voting fraud helped fuel the attack on the Capitol as Congress met to certify Biden's victory. Trump and his allies also devised a plan to use false electors from key states to thwart certification.

Federal prosecutors brought obstruction charges against about 350 of the roughly 1,400 people charged in the Capitol attack including Fischer and Trump. A Supreme Court ruling dismissing the charge against Fischer could make it more complicated — but not impossible — to make the charge stick against Trump, according to experts. The charge carries a sentence of up to 20 years in prison, though January 6 defendants convicted of obstruction have received far lesser sentences.

This is one of four criminal cases against Trump, whose first trial gets underway on Monday in New York on charges involving hush money paid to a porn star. Trump has pleaded not guilty in all of the cases and called them politically motivated.

The Supreme Court on March 4 reversed a ruling by Colorado's top court to exclude Trump from the state's ballot under a constitutional provision involving insurrection. But the justices did not address the lower court's finding that Trump had created “an atmosphere of political violence” before the January 6 attack and “engaged in insurrection.”

IMMUNITY CLAIM

Until Trump, no former president had faced criminal charges.

Trump has asserted that he has “absolute immunity” because he was serving as president when he took the actions that triggered Smith's election subversion indictment. Smith has urged the Supreme Court to reject that claim on the principle that “no person is above the law.”

In August 2023, Smith brought four federal criminal counts against Trump in the election subversion case: conspiring to defraud the US, corruptly obstructing an official proceeding and conspiring to do so, and conspiring against the right of Americans to vote.

Fischer is awaiting trial on six criminal counts, including assaulting or impeding officers and civil disorder, while he challenges his obstruction charge at the Supreme Court.

According to prosecutors, Fischer charged at police officers guarding a Capitol entrance during the attack. Fischer, at the time a member of the North Cornwall Township police in Pennsylvania, got inside and pressed up against an officer's riot shield as police attempted to clear rioters. He remained in the building for four minutes before police pushed him out.

US District Judge Carl Nichols, a Trump appointee, dismissed Fischer's obstruction charge, ruling that it applies only to defendants who tampered with evidence. The US Court of Appeals for the District of Columbia Circuit reversed that decision, ruling that the law broadly covers “all forms of corrupt obstruction of an official proceeding.”

A Supreme Court decision favouring Fischer could mean that hundreds of other defendants who faced the same charge could seek to be resentenced, withdraw their guilty pleas or request new trials.

“It may not make a lot of practical difference in most cases because if defendants were convicted of multiple charges the judge might decide not to alter the sentence even if the obstruction charge is gone,” said Randall Eliason, a former federal prosecutor who now teaches at the George Washington University Law School.

About two-thirds of the January 6 defendants charged with obstruction also were charged with other felonies.

Eliason said that a win for Fischer might not deter Smith from pursuing the obstruction charges against Trump, despite the higher bar that the Supreme Court might set.

“The charges against Trump can probably survive because Smith will be able to argue that his case did involve evidence-based obstruction, based on the slates of phoney electors,” Eliason said.

Legal experts have said the Supreme Court would need to rule by about June 1 for Trump's trial on the election-related charges to finish before November 5. If Trump regains the presidency, he could seek to force an end to the prosecution or potentially pardon himself of any federal crimes. Trump has pledged to pardon January 6 defendants.

Reuters