Supreme Court makes prosecution of Trump on obstruction charge more difficult, with ruling to narrowly define law used against him and Jan. 6 rioters

The Supreme Court faced a decision in a case involving participants in the Jan. 6, 2021, U.S. Capitol riot. AP Photo/John Minchillo, File

Riley T. Keenan, University of Richmond

The indictments – and in some cases, the convictions – of hundreds of people charged with participating in the riot at the U.S. Capitol on Jan. 6, 2021, will have to be reconsidered, and possibly dropped, because of a ruling by the U.S. Supreme Court on June 28, 2024. Among those charged using a broad interpretation of the obstruction law now narrowed by the high court: former President Donald Trump.

In its decision in Fischer v. United States, the Supreme Court held that a federal statute that prohibits obstructing an official proceeding may not apply to three defendants who were charged with participating in the U.S. Capitol riot. Although former President Donald Trump is not a defendant in the case, special counsel Jack Smith has charged him separately with violating the same statute.

As a law professor who teaches and writes in the fields of constitutional law and federal courts, I’ll explain what the court’s decision means for Jan. 6 defendants – and for Smith’s case against Trump.

Charges against Capitol rioters

According to their indictments, Joseph Fischer, Edward Lang and Garret Miller were present at the Capitol on Jan. 6, 2021. Prosecutors say that all three men entered the Capitol building and assaulted police officers during the riot. One of the men, Lang, brandished a bat and a stolen police shield, and another, Miller, later called for the assassination of U.S. Rep. Alexandria Ocasio-Cortez on social media.

Federal prosecutors charged the three men with various crimes, including assault on a federal officer, disorderly conduct on the Capitol grounds and obstructing a congressional proceeding. That last charge is the one at issue in the Supreme Court appeal.

Before trial, the defendants argued that the law the prosecutors had used to charge them with obstruction applied only to evidence tampering, not the violent disruption of a congressional proceeding. The district court agreed and dismissed the charge, but the U.S. Court of Appeals for the D.C. Circuit reversed and sent the case back for trial.

The Supreme Court then agreed to hear the case, putting the trial on hold while it considered the dispute over the scope of the obstruction law.

Defining a catch-all term

In a 6-3 opinion by Chief Justice John Roberts, the Supreme Court agreed with the defendants and held that the statute prohibits only evidence tampering. It then sent the case back to the appeals court to decide whether the defendants violated the law under that narrower reading by trying to prevent Congress from receiving and certifying the states’ true electoral votes.

The court began with the text of the obstruction law. The law penalizes anyone who “alters, destroys, mutilates, or conceals a record, document, or other object” or who “otherwise obstructs, influences, or impedes any official proceeding.” The government argued that the defendants had “otherwise obstruct(ed)” proceedings in Congress to certify the results of the 2020 election.

But the court rejected that argument, holding that the phrase “otherwise obstructs” refers only to obstruction that – like altering, destroying, mutilating or concealing a record, document or object – impairs the availability or integrity of evidence for use in an official proceeding. The law’s catch-all for “otherwise obstructing” an official proceeding must be read in common with the list of actions that precedes it, the court explained. Otherwise, the list would be redundant.

The court also pointed to the law’s historical background. Congress, the court explained, enacted this specific obstruction law in 2002 in the wake of the Enron accounting fraud scandal. Its aim was to fill a gap in the nation’s existing obstruction laws, which at the time prohibited directing a third party to destroy incriminating evidence but not destroying the evidence oneself.

The government’s reading of the law, the court explained, would stretch it far beyond that purpose, prohibiting forms of obstruction that had nothing to do with evidence and that Congress never intended to criminalize.

What this means for Jan. 6 defendants – and for Trump

The Supreme Court, from left in front row: Sonia Sotomayor, Clarence Thomas, John Roberts, Samuel Alito and Elena Kagan; and from left in back row: Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson. Alex Wong/Getty Images

The Supreme Court’s decision does not end the case against the Fischer defendants, who will likely stand trial on their assault and disorderly conduct charges.

But it may lead to the dismissal of obstruction charges, or reversal of obstruction convictions, for other Jan. 6 defendants. According to an NPR database, federal prosecutors have charged at least 250 other defendants with obstruction of an official proceeding, and 128 have been convicted.

The ruling may also undermine special counsel Jack Smith’s case against former President Donald Trump, whom Smith has charged with obstruction under the same law. If that case survives a separate pending Supreme Court appeal, the former president will likely seek dismissal of that charge.

Trump may not succeed, however, as the obstruction charge against him is based in part on the allegation that he organized slates of electors to certify false election results to Congress. That may amount to impairing the integrity of the evidence used in the certification proceedings.

And the obstruction charge is also not the only count the former president faces. But the ruling may narrow the case and make it more difficult for the special counsel to present evidence to the jury concerning the violence that occurred on Jan. 6. Under this new ruling, that violence alone may not count as obstruction.

The Fischer case also shows how sometimes, especially in high-stakes cases, the justices can use methods of legal reasoning that they are quick to criticize in other contexts. In the opinion, members of the Supreme Court’s conservative majority cited the legislative history of the obstruction law – evidence that conservative jurists such as the late Justice Antonin Scalia often called unreliable.

The Supreme Court’s decision in the Fischer case may have a profound effect on the special counsel’s historic prosecution of former President Trump.

But even if it does not, it still sheds important light on the court’s inner workings and the federal government’s power to safeguard the integrity of its proceedings.

Riley T. Keenan, Assistant Professor of Law, University of Richmond

This article is republished from The Conversation under a Creative Commons license. 

A campaign-defining presidential debate

U.S. President Joe Biden and Donald Trump participate in the CNN Presidential Debate on June 27, 2024. Justin Sullivan/Getty Images

Mary Kate Cary, University of Virginia and Karrin Vasby Anderson, Colorado State University

With four months to go until Election Day, the earliest-ever general election debate featured two presidents – one current, one former – and a lot of bitter personal attacks. Joe Biden’s universally acknowledged poor performance surprised and even panicked Democrats; Donald Trump gave a more forceful – if not truthful – performance.

The Conversation asked two scholars, Mary Kate Cary and Karrin Vasby Anderson, to watch the debate and analyze a passage or a moment that stood out to them. Anderson is a communications scholar with a specialty in gender and the presidency, as well as political pop culture. Cary teaches political speechwriting and worked as a White House speechwriter for President George H.W. Bush, for whom she wrote more than 100 addresses.

President Joe Biden speaks during the CNN debate against Donald Trump on June 27, 2024, in Atlanta. Justin Sullivan/Getty Images

Karrin Vasby Anderson, Colorado State University Department of Communication Studies

One of the first definitions of good public speaking I learned as a college debater and student of rhetoric came from the ancient Roman scholar and rhetoric teacher Quintilian. In his 12-volume “Institutio Oratoria,” Quintilian said the ideal orator was a good person, speaking well. He was particularly concerned about the danger that a skilled rhetorician who lacked character could pose to society.

A presidential debate ought to showcase ideal orators – skilled speakers who are also people of character. The June 27 debate offered voters an either-or scenario.

Former President Donald Trump was aggressive, confident and disciplined, but he peppered his remarks with a steady stream of lies, half-truths and misinformation. President Joe Biden focused on Trump’s documented record – both criminal and political – but failed as an orator, demonstrating none of the charisma and command on display during his most recent State of the Union address just four months ago.

The contrast was clear early in the debate when CNN’s Dana Bash asked Trump whether he would block access to abortion medication. Trump said that he would not. He then falsely claimed that, in the lead-up to the 2022 Supreme Court decision that overturned Roe v. Wade and removed the federal protection for abortion rights, “everybody wanted to get it back to the states, everybody, without exception.”

Trump then went on offense, accusing Democrats of taking “the life of a child in the eighth month, ninth month, even after birth.”

Biden’s response was initially clear and resolute: “It’s been a terrible thing, what you’ve done,” he said. And he pushed back against the preposterous claim that “everybody” wanted Roe v. Wade overturned, saying, “the idea that states are able to do this is a little like saying we’re going to turn civil rights back to the states (and) let each state have a different rule.”

But the rest of Biden’s response was muddled. After “veering inexplicably” into an anecdote about a woman murdered by an undocumented immigrant, Biden expressed his support for people’s right to choose by saying on three separate occasions that the decision should be up to a doctor, rather than the pregnant person.

Trump closed out the segment by reiterating his blatant lie in stronger terms: “So that means, he can take the life of the baby, in the ninth month and even after birth because some states, Democrat run, take it after birth.” The Associated Press’s fact check of this claim is succinct: “Infanticide is criminalized in every state, and no state has passed a law that allows killing a baby after birth.”

After nearly a decade of exposure to Trump’s habitual misinformation, lies about states murdering babies may not stand out as shocking in a presidential debate. And, certainly, it’s an argument that should have been easy for Biden to refute.

But if the populace must choose between a good person and someone who spoke well, Quintilian would remind us that someone who speaks well but has no integrity is dangerous.

The consequences for the republic could be dire.

Republican presidential candidate Donald Trump answers a question during the first debate of the 2024 U.S. presidential election. Justin Sullivan/Getty Images

Mary Kate Cary, University of Virginia Department of Politics

I think America just saw history being made.

Within 10 minutes, a very hoarse President Joe Biden, was asked about deficit spending, lost his train of thought, and ended his answer by muttering something about “beating Medicare.” It was awful.

There were so many moments when Biden looked confused and unable to process what was happening. I took notes on key exchanges, but the number of embarrassing episodes, unfinished sentences and incoherent phrases by Biden is too long to list. His answer on why he should be president in his 80s somehow veered into computer chips being made in South Korea.

Former President Donald Trump made his own share of missteps, but overall, he was relatively sharp, and restrained when he was provoked. He scored some points on the issues and did much better than he did in their first debate four years ago. Trump did better than I think many people thought he would.

Our assignment tonight was to find a moment to react to and put it in context. I’ve been to multiple presidential debates and watched many more on television over the years, and have never seen anything like this.

Is there any way the Democrats can convincingly argue for keeping Biden as their nominee?

The bottom line: Moderators Jake Tapper and Dana Bash did a good job of asking substantive questions and keeping control of the debate; Trump missed an opportunity to knock it out of the park but got through it; and Biden will most likely have caused a disaster for the Democratic Party.

Mary Kate Cary, Adjunct Professor of Politics and Director of Think Again, University of Virginia and Karrin Vasby Anderson, Professor of Communication Studies, Colorado State University

This article is republished from The Conversation under a Creative Commons license. 

Biden’s immigration order won’t fix problems quickly – 4 things to know about what’s changing

Undocumented migrants in Jacumba, Calif., are detained by U.S. Border Patrol officers on June 4, 2024. Katie McTiernan/Anadolu via Getty Images

Jean Lantz Reisz, University of Southern California

Immigration is a top issue in the upcoming presidential election – and President Joe Biden’s new executive order restricting migrants’ ability to apply for asylum is likely to further elevate the subject in national politics.

The number of undocumented migrants crossing the U.S.-Mexico border has soared in recent years, with 249,785 arrests taking place along the border in December 2023. That marks a 13% rise from the 222,018 migrants arrested by the Border Patrol along the U.S.-Mexico border in December 2022.

Jean Lantz Reisz, an immigration law scholar at the University of Southern California, explains four key things to know about how this executive order will take effect and influence immigration trends.

President Joe Biden speaks about his executive order limiting asylum on June 4, 2024, at the White House. Kevin Dietsch/Getty Images

1. The executive order is basically an asylum ban

Biden announced his executive order on June 4, 2024. It prevents everyone who crosses the U.S.-Mexico border without a visa, and not passing through an official port of entry, from seeking asylum. It goes into effect when the number of people crossing the U.S.-Mexico border each day exceeds an average of 2,500.

There have generally been more than 2,500 people without visas crossing the U.S.-Mexico border for each day of Biden’s entire presidency.

Effectively, this is a ban on asylum, meaning the legal right for undocumented immigrants to remain in the U.S. because of the harm they face in their home countries.

Under Biden’s order, some undocumented migrants who express a fear of returning to their home countries may be eligible for other kinds of legal protections – for example, legal protections intended for torture survivors.

In order to get this special legal protection, migrants would have to show U.S. border and immigration officials a lot of evidence outlining the danger they would face in their home countries. They would need to show more evidence than is required for asylum-seekers. Migrants will generally not have this evidence on hand and, as a result, will not receive any kind of legal protection or chance to stay in the U.S.

Over the past decade, including during Biden’s presidency, approximately two-thirds of people who applied for asylum while they were in deportation proceedings were granted asylum or another kind of legal protection that allowed them to stay in the U.S., according to the Transactional Records Access Clearinghouse, a data organization at Syracuse University.

Biden’s order means that many individuals who previously would have been entitled to asylum, per U.S. law, will now be expelled to Mexico or their home countries without the opportunity to apply for asylum.

2. This could lead to a rise in undocumented minors crossing the border solo

Many individuals who reach the U.S.-Mexico border and cross into the U.S. without a visa or an online appointment to meet with U.S. Customs and Border Protection will be quickly turned back and deported to Mexico or returned to their home countries. The U.S. will need cooperation from Mexico to be able to turn back non-Mexican citizens to Mexico. Mexico currently accepts Cuban, Haitian, Nicaraguan and Venezuelan citizens deported from the U.S.

In December 2023, about one-fourth of the migrants apprehended at the U.S.-Mexico border were from Mexico, while another one-fourth were from El Salvador, Guatemala or Honduras. The largest group of apprehended migrants were from other countries, including Venezuela and China.

Biden’s order will not apply to people who are under 18 and cross the U.S.-Mexico border without a parent or guardian. These children will be detained and placed in deportation proceedings where they can seek asylum or other immigration protections.

This creates the risk that desperate parents will send their children alone across the border. This happened from March 2020 through May 2023, when COVID-19-related border restrictions, called Title 42, similarly banned undocumented immigrants crossing the U.S.-Mexico border from seeking asylum. This restriction did not apply to unaccompanied minors. It resulted in a sharp spike in undocumented minors crossing the U.S. southern border from 2020 through 2023.

3. Biden is taking a page out of Donald Trump’s book

Biden is basing this executive order, in part, on an immigration statute called 212(f), which gives the president very broad authority to suspend the entry of certain noncitizens because it would be “detrimental” to U.S. interests.

Former President Donald Trump cited this law when he implemented a travel ban that temporarily suspended the entry of noncitizens from seven countries, including five Muslim-majority countries, in 2017. The U.S. Supreme Court upheld the third version of this ban as being lawful in 2018. Biden reversed the ban in 2021.

Migrants, mostly from Central America, wait in line to cross the border from Matamoros, Mexico, to Brownsville, Texas, on June 4, 2024. Chandan Khanna/AFP via Getty Images

4. The executive order won’t be so easy to implement

Biden’s ability to actually reduce the number of migrants who cross the U.S.-Mexico border without a visa or any other kind of authorization will depend on several factors.

The president will need Mexico to accept more deported citizens of different countries in order for the U.S. to swiftly turn away migrants. U.S. Border Patrol and immigration agencies have also been overwhelmed by the large influx of undocumented migrants crossing the border. They cannot easily apprehend and screen all migrants or quickly respond to migrants’ applications to stay in the U.S. in immigration courts, which have a historic and massive backlog.

Quickly processing and deporting migrants back to their home countries will also be an obstacle that could limit the order’s effectiveness. U.S. immigration officials will first need to determine whether someone who states a fear of returning to their country qualifies for other kinds of legal protection that are not asylum.

Deporting a Mexican citizen or a Cuban, Venezuelan, Nicaraguan or Haitian citizen can be done quickly and easily, since Mexico will accept them. Deporting migrants from other countries would require their governments to help them get the necessary travel documents and, in most cases, arrange airplane flights.

Still, Biden’s order may deter many migrants who plan to cross the border in the hopes of being allowed to remain in the U.S. and seek asylum.

Jean Lantz Reisz, Clinical Associate Professor of Law, Co-Director, USC Immigration Clinic, University of Southern California

This article is republished from The Conversation under a Creative Commons license. 

Yes, Donald Trump has a point about political prosecution

Donald Trump speaks to the media during a break in his criminal trial in New York on May 30, 2024. Michael M. Santiago/Pool/AFP via Getty Images

Ronald Sievert, Texas A&M University

The facts and the law behind New York District Attorney Alvin Bragg’s successful prosecution of Donald Trump could be argued at length. But as a government prosecutor for 30 years, I have been most interested in the ethics of prosecuting that case.

Outside the courthouse after the verdict, Trump said, “This was a disgrace.” That echoes comments made over the year since his indictment in the case in which Trump repeatedly claimed the prosecution was “political persecution.”

There’s merit to his point.

Manhattan District Attorney Alvin Bragg speaks during a press conference to discuss his indictment of former President Donald Trump on April 4, 2023. Angela Weiss/AFP via Getty Images

No one better outlined the important ethical standards that have enabled state and federal prosecutors to maintain an image of integrity and honesty than Supreme Court Justice Robert Jackson. In a speech to the nation’s federal prosecutors on April 1, 1940, he noted that prosecutors should select cases where the offense is “most flagrant and the public harm the greatest,” while warning that the prosecutor’s ability to choose defendants is the “most dangerous power.”

Choosing defendants, Jackson said, requires judgment. It is a power that can be abused.

“With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding a technical violation of some act on the part of almost anyone,” Jackson said. In certain cases, he said, “it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”

It is when the prosecutor “picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies,” Jackson warned.

For years, as a federal prosecutor, I had been proud to stand up before the juries and announce, “Ron Sievert for the United States.” I believed that the majority of those in the courtroom understood that the federal government traditionally prosecuted cases that were the “most flagrant.” These were cases where, as Jackson said, “the public harm” was “the greatest.”

We prosecutors preserved our reputation of not prosecuting cases for political reasons by only pursuing cases where there were real victims, in the sense of bodily harm or financial loss. The U.S. Department of Justice had an unwritten but long-understood policy of never indicting and trying a politician for a nonviolent crime within one year of an election.

New York’s prosecution of Donald Trump can be, and has been, characterized long before today by some as a “political prosecution” because of the strong belief that a case on an allegedly false record would never have been brought if Trump were not running for president.

Justice Jackson warned that such a case, without an apparent victim, could undermine the public’s perception of the prosecution’s legitimacy. This prosecution may have upset Trump, but the real question is: Will it damage the good faith – both in the United States and internationally – that has been earned for decades by American public prosecutors?

Ronald Sievert, Senior Lecturer in Government, Texas A&M University

This article is republished from The Conversation under a Creative Commons license.

Biden and Trump will fight for Michigan’s votes county by county in a state where little things matter a lot

Somali Americans cast their early votes at the Lansing city clerk’s office on November 2, 2020, in Lansing, Michigan. John Moore/Getty Images

Dante Chinni, Michigan State University

Between now and Election Day, journalists are going to spend a lot of time talking about Michigan as one of a group of “crucial battleground states” in the 2024 campaign. There will be stories about the state’s blue-collar roots and the importance of the vote from working-class white people, African Americans, Arab Americans, college students and rural communities.

All of those stories will be true, to some extent, because in the past few elections Michigan has become a state where the little things – low turnout with this voter group, extra enthusiasm with that one – matter a lot.

It wasn’t always this way. Until fairly recently, Michigan was a relatively safe bet, at least in presidential politics. From 1992 to 2012, during six presidential elections, Michigan voted Democratic regardless of what the nation did as a whole. In 2000 and 2004, Republican George W. Bush won the presidency, while Michigan voted for Democrats Al Gore in 2000 and John Kerry in 2004.

Then Donald Trump changed the state’s electoral equation.

U.S. Republican presidential nominee Donald Trump addresses supporters on Oct. 31, 2016, at Macomb Community College in Warren, Mich. Jeff Kowalsky/AFP via Getty Images

Many puzzle pieces

Republican presidential candidate Trump won the state of Michigan in 2016 by activating specific segments of the electorate. He won with a combination of enthusiasm among some voter groups for him and disdain among others for Democratic nominee Hillary Clinton. The evidence of those voter attitudes is all over the results data from 2016.

You can see the enthusiasm for Trump in the results from Macomb and Monroe counties. These are two blue-collar suburban counties around Detroit that we call “middle suburbs” in the American Communities Project, a journalism effort I direct at Michigan State University. These counties are home to many of the autoworkers in the big plants and smaller auto shops around Detroit. Both those counties flipped to Trump in 2016 from Barack Obama in 2012, and both produced more total votes – a sign of Trump’s little-noted, blue-collar suburban surge in 2016.

The disdain for Clinton is apparent in Wayne and Genesee counties, the respective homes of Detroit and Flint, two cities with large African American populations. Clinton still won both Democratic strongholds, but her margins of victory were smaller than Obama’s in 2012, and fewer people voted in each county.

In 2012, Wayne County produced about 818,000 votes, and Obama won it by about 47 percentage points. That was largely in line with recent winning margins by Democratic candidates. The Democratic presidential candidate won the county by 40 points or more in every contest from 2000 to 2012.

In 2016, Wayne County produced only 783,000 votes, and Clinton won it by 37 percentage points. Genesee County followed a similar track. In 2016, it produced 6,000 fewer votes than 2012, and Clinton won it by a relatively meager 9 percentage points, after Obama had won it by 28 percentage points four years earlier.

In 2020, Joe Biden recaptured Michigan, and won the White House, by engaging and reengaging voter groups, particularly African American voters, that didn’t come out in 2016. Turnout in Wayne County spiked to 874,000 votes.

Biden also got bigger turnout and bigger margins out of Washtenaw and Ingham counties, the respective homes of the University of Michigan and Michigan State University, known as “college towns” in the project I run. Trump also saw his margin shrink in blue-collar Macomb County.

The push and pull among these groups will dictate what happens in Michigan this fall. There are a series of key questions and voter groups to watch.

President Joe Biden speaks alongside Michigan Gov. Gretchen Whitmer while visiting a United Auto Workers phone bank in the metropolitan Detroit area on Feb. 1, 2024. Mandel Ngan/AFP via Getty Images

Can Trump or Biden do it again?

Can Biden get big turnout and support among the large African American populations in places such as Flint and Detroit? The early signs suggest there could be concerns here. Polls consistently show low enthusiasm among Black voters.

What about Trump’s support among those blue-collar suburbanites in places such as Macomb and Monroe counties? Those places will almost certainly vote for Trump again this fall, but margins will be key. Since 2016, the political leaning among those voters looks more complicated. There were unenthused Democrats in these communities too in that 2016 race, and since that election they’ve been more likely to come out to vote. For instance, Michigan’s Democratic Gov. Gretchen Whitmer won Macomb in her 2018 campaign and her 2022 reelection. Can Trump recreate his huge 2016 win with those voters in 2024?

Young college-age adults are usually some of the hardest voters to turn out for an election, but, again, they are a key Democratic constituency. Voters in “college town” counties such as Washtenaw and Ingham didn’t show up in big numbers in 2016, but they did in 2020, largely because of their dislike of incumbent Trump. They also came out in droves in 2022 to reelect Whitmer, but that may have been because of a ballot proposal that enshrined abortion rights in the state.

This year, polls show young voters are unenthused about Biden, and there will be no abortion measure on the ballot in Michigan. How does that effect their turnout? Do they even consider voting for Trump or a third-party option because they oppose some Biden policies?

Small shifts can mean a lot

One of the policies that may turn younger voters off is the U.S. government’s position on the Israel-Hamas war in the Middle East, which affects another important voter group in Michigan – Arab American voters.

There has been a lot of attention on this group in the 2024 political coverage of Michigan because of the large concentration of Arab American voters in the state. It’s not a massive population, about 225,000 people in a state of more than 10 million, according to the U.S. Census Bureau.

But the state has been close lately, with Trump winning it by about 11,000 votes in 2016 and Biden capturing it by about 150,000 in 2020. Again, in Michigan, small shifts can mean a lot.

Those aren’t all the factors that could influence the election’s outcome, of course. There are a lot of rural counties in the northern parts of Michigan that tend to favor Trump. Even though they don’t produce a lot of votes individually, together they can add up. A surge in turnout there could matter.

There are also the high-income, highly educated suburbanites around Detroit and Grand Rapids who are increasingly voting Democratic.

In short, there are no simple answers. That’s why the election will likely be close. But keep an eye on these voter segments and regions and you’ll get a sense of where things are headed in the complicated jigsaw puzzle that is Michigan this fall.

Dante Chinni, Director, American Communities Project, Michigan State University

This article is republished from The Conversation under a Creative Commons license. 

A silent Trump with eyes closed and a convicted liar on the stand − 2 experienced observers of Trump’s criminal trial discuss what stands out

Michael Cohen leaves his home to attend his second day of testimony at Manhattan Criminal Court on May 14, 2024, in New York City. David Dee Delgado/Getty Images

David E. Clementson, University of Georgia and John E. Jones III, Dickinson College

Sex, money and power – all three subjects got an airing over the three days of testimony and cross-examination of Michael Cohen in the criminal trial of former President Donald Trump. Trump is accused of illegally covering up a hush-money payment to a woman claiming she had a sexual encounter with Trump; Cohen, known as Trump’s former “fixer,” says he carried out the scheme at Trump’s behest.

The Conversation’s senior politics and democracy editor, Naomi Schalit, interviewed John E. Jones III, the president of Dickinson College and a retired federal judge appointed by President George W. Bush, and David E. Clementson, a scholar of political communication at the University of Georgia and a specialist in political deception. The men spoke about how the jury may perceive Trump – those closed eyes may be a problem, says Clementson – and whether Trump’s defense rendered Cohen, a convicted liar, non-credible. The cross-examination, says Jones, is not “scoring as well as it might.”

How do you think Trump is seen by the jury?

David E. Clementson: As a researcher, I have conducted experiments testing the effects of a politician’s demeanor. I’m interested that Trump is often keeping his eyes closed in the courtroom. It’s this one simple nonverbal cue that could have a huge impact on the trial and the jury.

There’s an adage, “One cannot not communicate.” Take, for example, a person on an airplane closing his eyes when he sees the flight attendant coming down the aisle. He isn’t doing or saying anything – yet he’s actually saying a lot, such as, “Don’t talk to me. Don’t bother me. I don’t want a beverage. I don’t need peanuts.”

It could be a strategy by Trump’s lawyers telling him to sit there with his eyes closed. Otherwise, at minimum he’d probably be responding with derision, nonverbally, during the proceedings. And that can backfire and make you seem guilty.

But keeping his eyes closed could also be risky and maybe disastrous, because the No. 1 way that people think you are deceptive is if you don’t make eye contact and look away. That finding is cross-cultural, across languages, across people groups. If jurors think Trump is averting his gaze, they probably think he is deceptive.

But if the jury thinks he is communicating with his eyes closed, like the person on the airplane closing his eyes, it could be an exception to the rule that you have to make eye contact to seem honest. This may be the case if the jury thinks he’s justified in his derision about the proceedings.

John E. Jones III: I read that Trump’s proclivity to keep his eyes closed is a way of controlling himself so that he doesn’t act out. And recall that during the E. Jean Carroll trial, he acted out constantly. It’s my belief – having talked to countless jurors after trials and verdicts in cases – that jurors do not like parties who don’t respect the proceedings. It makes them very uncomfortable. They tend to see the judge as their friend, their keeper. When the judge is stepped on by a party, that offends the jurors. They see the judge as an ally because of the structure of the court.

Michael Cohen gave crucial testimony this week. He’s admitted previously lying under oath. How should a jury and the public evaluate his testimony?

Clementson: Reportedly, Cohen is the best witness that the prosecution has, yet he’s easily discredited. We know from social psychology and communication research that credibility is largely based on whether an audience thinks a speaker is expressing his own viewpoint or not. If a speaker is saying his own truly held opinions, the speaker is seen as honest and unbiased and sincere and persuasive.

But if the audience thinks he’s controlled by external circumstances, if he’s pressured by an outside situation, then he isn’t seen as honest and persuasive. Cohen exemplifies this external pressure controlling his words and actions. Based on his own testimony, he was formerly Trump’s biggest fan; he claimed to do and say whatever he was told. Then he turned on Trump, so even jurors who hate Trump are probably suspicious of a jilted lover who used to be infatuated with Trump.

Former President Donald Trump appears in Manhattan Criminal Court on May 16, 2024, in New York during his trial for allegedly covering up hush-money payments. Mike Segar-Pool/Getty Images

Jones: The philosophical question, I think, is can a person who lies repeatedly about myriad subjects figuratively change their spots and begin to tell the truth? That’s what the jury has to wrestle with.

The prosecution’s challenge in this case, from a trial and a legal perspective, is can they corroborate the things that Cohen is saying? I think they did a good job of precorroborating, as has been widely written, what Cohen said. Now the cross-examination that has been taking place over the last couple of days is really designed to show not just that he’s a liar, and that liars continue to lie, but also that he detests Donald Trump. And, as David Clementson says, that he is the sort of scorned lover to the extent that it colors his testimony.

I don’t think that the cross-examination is scoring as well as it might, because I think it’s somewhat meandering in nature.

I think the likely result of this case is going to be at this point – given all that I’ve seen and particularly if Cohen is the last prosecution witness – either a conviction or a partial conviction, or it’s going to be a case that involves a hung jury. Unless the defense pulls a rabbit out of the hat.

What does it mean, both for the jury and the public, and for the credibility of what happens in this courtroom, that Trump is most likely not going to testify?

Jones: It means that you have a whole spate of unrebutted testimony. And, of course, the judge will instruct the jury that the burden is on the prosecution and it’s a burden that never shifts, and it is absolutely not required for the defendant to testify. The judge really makes that quite pronounced in the instructions both before and after the trial.

As a trial judge, I would really press the jurors in my instructions on the rights of a defendant not to testify. That’s essential to our system of jurisprudence, and they need to understand that, and particularly that they are not to hold that against a particular defendant, because the burden of proof is on the prosecution. And I think most jurors operate with that in mind.

But human curiosity being what it is, the jury would probably like to know Trump’s version of the facts. It is always a very difficult decision for the defense to make. It’s kind of a cost-benefit analysis, based on what you get having your defendant testify versus the downside. The downside here is enormous.

Clementson: Trump can’t testify. Full stop. He’s too much of a loose cannon. Everything to lose, nothing to gain.

David E. Clementson, Associate Professor, Grady College of Journalism and Mass Communication, University of Georgia and John E. Jones III, President, Dickinson College

This article is republished from The Conversation under a Creative Commons license. 

Justice Sotomayor’s health isn’t the real problem for Democrats − winning elections is

Winning on Election Day is the best path for any political party to remake the Supreme Court. Photo by Scott J. Ferrell/Congressional Quarterly/Getty Images

Kevin J. McMahon, Trinity College

It almost sounds like a bad joke: What did the 78-year-old male senator say to the 69-year-old female justice?

“RETIRE!”

That’s effectively what happened recently when U.S. Sen. Richard Blumenthal of Connecticut suggested that Sonia Sotomayor – the first Hispanic and third woman Supreme Court justice – retire so that President Joe Biden could appoint a younger and presumably healthier replacement.

Blumenthal is not alone. Fearing a repeat of Justice Ruth Bader Ginsburg’s death in September 2020 — just weeks before Election Day — progressives such as Josh Barro, Mehdi Hasan and Nate Silver want to ensure that if Donald Trump does defeat Biden in November, he would not have another opportunity to replace a departed liberal justice with a young conservative ideologue.

If Sotomayor is indeed ill, she could justifiably choose to retire. But such calls are not clear-eyed assessments of the justice’s health. Blumenthal and the progressive columnists calling for Sotomayor’s retirement aren’t medical doctors who have reviewed the justice’s records.

Instead, in my view as a political scientist who studies the Supreme Court, these calls are gimmicks really designed to keep a seat on the Supreme Court in the hands of a liberal justice.

Democratic Sen. Richard Blumenthal of Connecticut has urged Sonia Sotomayor to resign from the Supreme Court. Anna Moneymaker/Getty Images

Long tenure is a problem

Don’t get me wrong. As I write in my new book, “A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People,” the increasingly long tenure of justices is a serious problem for American democracy. The confirmation of younger justices who stay far longer than they once did prevents the court’s membership from changing organically.

Consider, for example, a hypothetical I pose in my book. Justice Clarence Thomas once said that he intends to serve until he is 86 years old because, as he put it, “The liberals made my life miserable for 43 years, and I’m going to make their lives miserable for 43 years.”

If Thomas, who at 75 is the oldest sitting justice, is able to fulfill that promise and no younger justice leaves the court before him, the U.S. would not see another vacancy until 2034.

A court unchanged for 12 years would be unprecedented in American history. This is just one of the factors that has deepened the “democracy gap” between the justices and the people, which I define in the book as “the distance between the court and the electoral processes that endow it with democratic legitimacy.”

Some reforms would prevent justices from remaining on the high bench for three-plus decades, on average. But publicly requesting an ideologically aligned justice to retire isn’t one of them. It isn’t likely to work, and in the case of Sotomayor, it has been viewed as sexist.

Perhaps more importantly, it misses the point.

Win elections, shape the court

When it comes to the Supreme Court, progressives are now in the position where conservatives found themselves for many years. They’re on the outside looking in.

Instead of advancing gimmicks that are unlikely to work, progressives could take a page from the playbook of conservatives who learned from liberals of the previous era: Take the argument to the people.

Winning on Election Day is the best path for any party to remake the court. Recall how the conservatives came to dominate the court. In election after election, Republican presidential nominees rallied conservative voters to the polls by critiquing the court’s most politically divisive decisions, such as Roe, and promising a different type of justice if given the opportunity to fill a seat.

Winning on Election Day is the best path for a political party to remake the Supreme Court. Artis777/iStock/Getty Images Plus

Democrats often stayed silent about the Supreme Court during these campaigns, preferring to motivate voters to the polls with other issues. A 2016 exit poll question asked respondents about the importance of Supreme Court appointments in determining their vote for president. Twenty-one percent answered that it was “the” most important issue for them. And significantly, 56% of that 21% supported Trump, 15 percentage points more than those who backed Hillary Clinton.

In fact, when Trump named Neil Gorsuch as his first high court nominee mere days after his presidential inauguration, he highlighted this data, saying that “millions of voters” had supported him based on his promise to appoint conservatives to the court.

Voters are key

Progressives have already shown that the politically astute response to the conservative Supreme Court and its decisions isn’t to go after one of their own. It is to take advantage of the great distaste many Americans have toward some of the court’s decisions, particularly its 2022 Dobbs ruling uprooting Roe.

Just weeks after the Dobbs decision, Kansans overwhelmingly rejected a proposed constitutional amendment that would have denied women a right to obtain an abortion in their state. In the 2022 midterm elections, the expected red wave turned into a ripple as Democrats highlighted the abortion issue. And as the 2024 campaign season heats up, Democrats are primed to highlight their pro-Roe views to rally voters to the polls.

History shows that parties can win elections after losing the Supreme Court. Those parties have done so by strategically focusing on convincing voters to support them, not persuading justices to retire.

Kevin J. McMahon, John R. Reitemeyer Professor of Political Science, Trinity College

This article is republished from The Conversation under a Creative Commons license. 

Legislative inaction and dissatisfaction with one-party control lead to more issues going directly to voters in ballot initiatives, with 60% of them in six states

A home in rural Bingham, Maine, displays signs protesting a Quebec-to-New England hydropower corridor that voters rejected in a referendum vote. AP Photo/Robert F. Bukaty

Thom Reilly, Arizona State University

Recent polls show Americans are increasingly dissatisfied with their system of representative democracy, in which they choose candidates to represent their interests once in office.

When available, voters have bypassed their elected representatives and enacted laws by using direct democracy tools such as ballot initiatives and veto referendums. Ballot initiatives allow citizens or legislatures to propose policies for voter approval, while veto referendums permit challenges to legislative action.

The number of initiatives and veto referendums proposed nationally has been fairly stable over the past two decades. Over the past five years, however, lawmakers have increasingly adopted measures making it harder to get these initiatives and referendums on the ballot.

Citizen-led ballot measures in recent years have been used in various states to expand Medicaid, preserve abortion rights and raise minimum wages. The most common topic for veto referendums over the years has been taxation.

America’s founders were wary of direct democracy and what they felt was the risk of the tyranny of the majority, a situation wherein the majority places its own interests above the interests of a minority. Scholars have found that these direct democracy tools have disproportionately been used to promote conservative policies over progressive ones. They also note the potential threats direct democracy poses to democratic rights.

There is growing evidence, however, that these direct democracy tools are increasingly being used in a more broadly representative manner. And these measures often address a variety of progressive policies. Arizona, my home state, provides an interesting case study.

Mostly Western states

The citizen initiative and veto referendum process varies by state. In general, citizens collect signatures to have an issue placed directly on the ballot for the voters to decide.

Just half the states allow citizens to directly engage in this kind of policymaking. Twenty-four states allow some form of initiative, and 26 allow for referendums. The majority of these states allow both the initiative and veto referendum.

Most states that equip their citizens with direct democracy tools are in the West. About 60% of all initiative activity occurs in six states: Arizona, California, Colorado, North Dakota, Oregon and Washington. The states with the most veto referendums are North Dakota, Oregon and California.

Initially, Eastern and Southern states left out these direct democracy tools from their state constitutions primarily out of fear that direct democracy would empower Black people and immigrants.

Direct democracy tools found fertile ground in the Midwest and West during the populist and progressive movements of the late 19th century. As these territories became states, they often built these instruments into their state constitutions.

A total of 2,536 citizen initiative measures advanced in the 24 states that allow them from 2000 to 2023, with 1,631, or approximately two-thirds passing.

Defaulting to direct democracy

Two trends are reshaping the use of initiatives and referendums.

The first is the continued partisan polarization in the U.S. and voters’ frustration with the two-party system and the parties themselves.

Most Americans want their elected officials to compromise on important public policy issues, but the two major parties are increasingly embracing an uncompromising mindset that undermines their ability to address important public issues. I explore this in the book I co-authored with colleagues Jacqueline Salit and Omar Ali, “The Independent Voter.”

Second, many states are now controlled by one party. Forty states are currently under trifecta partisan control – where one party dominates the governor’s office, House and Senate. By population, only 17.4% of Americans are living in states with divided state government.

When elected officials are unwilling or unable to compromise, and the majority of U.S. citizens are living in states where there is consolidated control of government by a major party, important problems can go unaddressed.

‘Essential to a truly functioning democracy’

Pro-choice supporters gather outside the Michigan State Capitol on Sept. 7, 2022, after Michigan’s elections board rejected a voter initiative that would have enshrined abortion rights in the state Constitution. Jeff Kowalsky/AFP via Getty Images

The history of direct democracy tools in Arizona, where I live, provides an interesting example of how these tools have been used in a broadly representative manner.

In preparation for becoming a state, the framers of Arizona’s Constitution in 1910 wanted legislators to be the primary method of making laws, but they were concerned that legislators might not act on key issues. They viewed the initiative and referendum as essential parts of a functioning democracy, in which citizens could get around legislative inaction.

During Arizona’s constitutional convention in 1910, the Los Angeles Express newspaper urged its neighbor to push for direct democracy: “Let not Arizona be deterred from its purposes by menaces of the reactionaries or threats from such errant boys of big business… Let it write the initiative, the referendum, direct primaries, and the recall into the constitution and arm its people forever with the power of complete self-government.”

Ballot initiatives have been used by every kind of group for all kinds of purposes in the state. They have been passed both to increase and to curb public spending. Measures approved by voters have opposed affirmative action and immigrants’ access to state and local funds.

Other ballot measures increased the minimum wage, established a redistricting commission to combat gerrymandering and allowed the use of medical and recreational marijuana.

In 2024, initiatives likely to appear on the ballot include measures to expand abortion access and mandate open primaries.

While many state legislative bodies have been overturning or altering voter initiatives, citizens in Arizona prevented this from taking place.

Arizonans passed a unique voter-initiated constitutional amendment in 1998 known as the Voter Protection Act. It prohibits a governor’s veto or legislative repeal of any voter-passed initiative.

The procedures to put such initiatives and referendums to vote, however, are still largely controlled by the state Legislature. Arizona lawmakers have been successful passing legislation leading to a significant increase in rejected signatures. Because a certain number of signatures are required to get an initiative or referendum on the ballot, such legislation makes it harder to do that.

Direct democracy tools such as the ballot initiative and veto referendum have provided Arizonans with important alternatives to enacting public policy when elected representatives failed to do so. And these measures are being used to address a range of public policy issues, both conservative and liberal. Arizona can serve as a role model for how direct democracy can work for the rest of the states.

Thom Reilly, Professor & Co-Director, Center for an Independent and Sustainable Democracy, School of Public Affairs, Arizona State University

This article is republished from The Conversation under a Creative Commons license.