Dershowitz: Supreme Court Jan. 6 Case Likely Applies to Trump

The Supreme Court’s Jan. 6-related case may apply to charges President Trump faces, the scholar says.
Dershowitz: Supreme Court Jan. 6 Case Likely Applies to Trump
Attorney Alan Dershowitz, then member of President Donald Trump's legal team, speaks to the press in the Senate Reception Room during the Senate impeachment trial at the Capitol in Washington on Jan. 29, 2020. Mario Tama/Getty Images
Jack Phillips
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Retired Harvard Law professor Alan Dershowitz said that the Jan. 6-related case that the U.S. Supreme Court agreed to take likely will apply to former President Donald Trump’s case.

“Look, these were not obstructions of justice,” Mr. Dershowitz told Newsmax on Friday, referring to the charges against some of the defendants who breached the U.S. Capitol on Jan. 6, 2021. “These were attempts to exercise First Amendment rights to petition the government for a redress of grievances. Some of the people went too far and destroyed property, but those people who just tried to influence the congressional hearings were exercising their constitutional right.”

The former law professor added that those defendants were “entitled” to protest on Jan. 6, adding, “I think the court will render a ruling in which it says that the indictments of many of the people went too far by charging obstruction of justice.”

Earlier this week, the Supreme Court agreed to take up a case involving a man involved in the breach of the Capitol building and will rue on whether he can be charged with obstruction of an official proceeding. The Department of Justice has charged at least 325 Jan. 6 defendants under the statute.

While the justices said nothing about the Trump election case in agreeing to take up the case, legal experts said President Trump’s lawyers could argue that the court’s move should delay the start of his Washington trial on election subversion charges, currently due to begin on March 4. The Washington case against the former president, brought by special counsel Jack Smith, also includes the obstruction charge.

The case taken up Wednesday by the justices involves defendant Joseph Fischer, who was indicted on seven charges following the Jan. 6 breach. Among his charges is one count under a provision of federal criminal law for anyone who “corruptly ... obstructs, influences and impedes any official proceeding.”

The First Amendment defense “doesn’t apply to everybody, but I think it probably does apply to President Trump,” Mr. Dershowitz added. “He, too, as a citizen, had the right to petition his government for what he believed was a redress of grievances.”

Even though Mr. Dershowitz said that he believes President Trump’s 2020 election fraud claims were “wrong,” that still “doesn’t affect his legal claim of acting under the First Amendment.”

“I think the Supreme Court may very well render a ruling that helps former President Trump, helps my client, and helps many others who were swept up in this,” he said.

He added: “It’s very important that everybody be treated as individuals. If you did something, if you went in there and you destroyed property deliberately, that’s one thing. But if you simply objected to the way in which the votes were counted, even if you were wrong, that’s a complete defense under the Constitution.”

The Supreme Court is expected to hear arguments in the case in the coming months and issue a ruling by the end of June. It was not immediately clear how the Supreme Court’s action on Wednesday might affect President Trump’s case. His lawyers have not publicly commented on the case.

In federal charges brought by the special counsel’s office, President Trump faces four counts for allegedly trying to overturn the 2020 election results: conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; conspiracy to defraud the United States; and conspiracy to deprive citizens of their voting rights.

Also this week, Mr. Smith’s office asked the Supreme Court to take up and rule quickly on whether former President Trump can be prosecuted on charges relating to the election. The former president has filed motions arguing that he had absolute immunity while acting in his capacity as president, and the special counsel wants the high court to rule on those claims.

Former U.S. President Donald Trump departs for lunch and speaks to the media during his trial in New York State Supreme Court in New York City on Dec. 7, 2023. (David Dee Delgado/Getty Images)
Former U.S. President Donald Trump departs for lunch and speaks to the media during his trial in New York State Supreme Court in New York City on Dec. 7, 2023. David Dee Delgado/Getty Images

The former president has pleaded not guilty to his election-related charges, as well as charges stemming from three other ongoing state or federal criminal prosecutions.

Both Mr. Dershowitz and other legal experts have suggested that the special counsel’s office and Justice Department want a Trump conviction ahead of the 2024 election, which may denigrate his chances of winning. He also faces separate charges in three other jurisdictions.

“The prosecutors want a down and dirty conviction to affect the election, before the election, knowing that they very well may be reversed on appeal, but that will be too late to affect the election,” Mr. Dershowitz said Friday. “And so both sides are playing the timing game and timing is always up to the judges themselves—how quickly they put the case on, how quickly they decide the case. There’s very little anybody can do to affect the timing of judges.”

He noted that there are “many Americans” who will not vote for a candidate who was convicted of a “serious felony,” adding that it’s a bid to “influence the election and the losers are the American public.”

Reuters contributed to this report.
Jack Phillips
Jack Phillips
Breaking News Reporter
Jack Phillips is a breaking news reporter who covers a range of topics, including politics, U.S., and health news. A father of two, Jack grew up in California's Central Valley. Follow him on X: https://twitter.com/jackphillips5
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