People For the American Way Foundation

Two Pending Supreme Court Cases Will Affect Trump’s Federal Criminal Prosecution

News and Analysis
Two Pending Supreme Court Cases Will Affect Trump’s Federal Criminal Prosecution
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Although Donald Trump has been convicted in state court in New York, several federal criminal cases remain pending against him. Two cases that the Supreme Court is considering will affect the pending prosecution of Donald Trump in federal court for his unlawful efforts to overturn the 2020 election results. The first one involves Trump directly and his dangerous claim that he is immune from prosecution. The other case involves one of Trump’s insurrectionist followers who broke into Congress on January 6 and who is charged with one of the crimes that Trump is also charged with.

What is the Trump immunity case about?

Trump v. United States challenges the core constitutional principle that no one is above the law.

The case stems from efforts by federal prosecutors to hold Trump criminally liable under federal law for his extensive and unprecedented efforts to overturn the 2020 presidential election. A grand jury in Washington DC indicted Trump in August 2023, based on the evidence presented by Special Counsel Jack Smith.

According to Trump, he is immune from prosecution because he was president when he took those actions, and they were all official acts taken in his role as president. He claims that gives him “absolute immunity” from prosecution. His position is that no former president can be criminally prosecuted under federal law for any official act unless he has been impeached and removed from office for that particular act. Trump has contended that his trial cannot proceed until the issue is finally resolved.

The trial court judge and the D.C. Circuit on appeal rejected Trump’s extreme argument. That should have ended it. But the Supreme Court decided to take up Trump’s appeal and, importantly, did not put it on a fast track. This has aided his strategy of delaying the trial.

Will justices that have demonstrated support for the insurrection and/or have potential conflicts of interest take part in deciding this case?

Unfortunately, yes. In the days immediately after the insurrection reached the violent phase of January 6, a flag that is associated with Trump’s “stop the steal” movement flew in front of Alito’s home. Another such flag flew outside his vacation home in 2023. And in the time leading up to January 6, Clarence Thomas’ wife was urging officials to take actions to facilitate overturning the election results. Nevertheless, neither Alito nor Thomas has recused themselves from the case, and Alito has specifically refused to do so.

At oral arguments, how did the progressive and conservative justices see the case differently?

The progressive justices recognized the significant danger of a president abusing his power because he knows he will be immune from prosecution. In contrast, several of the conservative justices seemed more worried that a president might be chilled from carrying out his duties out of fear that a future administration might criminally prosecute him for it.

Did the Court seem to accept Trump’s extreme position?

It seemed that most of the justices were not willing to accept the broad argument that a former president is always immune from prosecution under federal law for actions he took as president.

However, when the Court took the case, the justices made clear they wanted to address general issues of presidential immunity far beyond the specifics of this case. At oral arguments, the conservative justices especially seemed interested in crafting rules that would cover any number of fact scenarios not before them. That means it will take far longer to write an opinion. This further delay serves Trump’s interests.

What were some of Trump’s more frightening arguments?

Some of the justices’ questions involved whether, and if so, how to distinguish a president’s official acts from private acts. Incredibly, Trump’s lawyer claimed that having a political rival killed or ordering a military coup could be considered an “official act” by the president that he could not be prosecuted for.

What happens next?

A majority of justices may want to use this case to set rules for when a president is immune from prosecution under federal law  and when he is not. Based on the oral arguments, it is hard to determine what rules would garner the support of a majority, or whether deciding how to apply those rules would delay Trump’s trial even further.

Will this case affect Trump’s criminal conviction in New York?

 It should not. It should only determine whether former President Trump is immune from prosecution under federal law. But if the Court rules for Trump, no one knows what new arguments Trump and his lawyers may make in New York as a result.

What is the other pending insurrection case?

Fischer v. United States doesn’t directly involve Trump, but it does involve one of the federal crimes that Trump is being prosecuted for. At issue is whether the law in question applies to activities beyond evidence-tampering.

Who is Joseph Fischer?

Joseph Fischer is one of the rioters of January 6. He was prosecuted for a number of crimes, including assaulting a federal officer. One of those crimes involved a law called the Sarbanes-Oxley Act.

What is the Sarbanes-Oxley Act?

Congress passed the Sarbanes-Oxley Act in 2002 after the Enron scandal. The issue in this case involves how to interpret a particular provision in that law.

Under the law, it is a crime to (1) tamper with evidence or to (2) engage in corrupt conduct that “otherwise obstructs” an official proceeding (including a congressional proceeding).

Prosecutors argue that the plain text of the second part clearly applies to Fischer. But he claims that the first part limits the scope of the second part to the context of evidence-tampering. According to Fischer, since obstructing Congress’s certification of the 2020 presidential election didn’t involve evidence-tampering, he can’t be prosecuted for violating Sarbanes-Oxley.

The resolution of this question will affect Fischer and more than 300 other Trump followers who have been prosecuted under this law for their actions of January 6.

How does this case affect Trump?

One of the special counsel’s charges against Trump is that he violated this law. So even though Trump is not a party to this case, the Court’s interpretation of the 2002 law will determine whether it applies to what prosecutors allege Trump did.

The Special Counsel has charged Trump with violating other criminal laws, and those charges are not affected by this case.

What happened at oral arguments?

The justices were divided. Some such as Kagan and Sotomayor seemed to interpret the law broadly to not be limited to the context of evidence tampering. But some of the conservatives pushed back against a broad interpretation.

Justices Barrett and Jackson raised questions suggesting a possible middle ground that might still uphold the prosecution in this case. Under this approach, the corrupt obstruction of an official proceeding would still have to involve documents or similar evidence. But to the extent that Fischer tried to obstruct the delivery of the official electoral certificates to the vice president’s desk for counting, that could be something prohibited by the law.

As for the impact of this case on Trump, his name was not mentioned during oral arguments.


Both cases are likely to be decided toward the very end of the Court’s current term in late June or early July. This will make it even more difficult for the federal case on election interference against Trump to be tried before the November election.


January 6 Insurrection, Supreme Court