Photo-Illustration: Intelligencer. Photo: Jeff Swensen/Getty Images
the national interest

Trump Is Facing Obstruction Charges and the Courts May Not Save Him

Republican judges have more freedom than Republican politicians.

Photo-Illustration: Intelligencer. Photo: Jeff Swensen/Getty Images

On Wednesday, the Washington Post reported that Donald Trump ordered an employee to move boxes of government documents he illegally seized. On Thursday, the Supreme Court unanimously rejected Trump’s appeal to intervene on his behalf. If you consider these developments in tandem, it reveals the highly elevated legal period he finds himself in.

Trump faces an array of legal and civil cases, the most serious of which appears to be the charges relating to his seizure of documents after leaving office. Trump appears to have violated several laws by taking the documents and refusing to turn them over, but faces an especially high likelihood of being charged with obstruction.

A Justice Department affidavit in August stated that “probable cause to believe that evidence of obstruction will be found” at his residence was ominous for Trump. The news that an employee allegedly moved documents at his order, and that this employee is cooperating with the Justice Department (which has obtained surveillance video of the documents being moved), is worse.

In order to charge somebody with obstruction, prosecutors need two elements: that the defendant “knowingly concealed or destroyed documents, and that he did so to impede the official work of any federal agency or department.” Firsthand testimony that Trump ordered the documents moved increases these two factors from a likelihood to a near-certainty.

One might expect Trump’s Republican allies to rally to his side, as they have so many times before. But the Supreme Court’s brusque rejection of his appeal is a reminder that the Court has little invested in protecting him now that he no longer occupies the White House.

To recognize that the Court’s Republican majority isn’t especially likely to rescue Trump this time doesn’t require an idealized view of its motives. Yes, judges are mostly partisan players now. The conservative movement’s political and legal wings share social circles and political goals and operate largely in tandem. One area where they differ, however, is in safeguarding the personal interests of Donald Trump.

Republican officials have often expressed private disgust or exasperation with the former president’s antics, viewing him as an undisciplined political liability. They have defended him anyway because their voters demanded it. But judges face no such pressure. Their lifetime appointments make them free to do what most Republican elites would like — push Trump off an ice floe and make room for newer and more reliable leadership.

If the Justice Department chooses to bring charges against Trump, the courts are the only and final backstop that can save him. Republican jurists can decide the law says whatever they wish it to say, and they might very well overturn any conviction. But when a conviction probably clears the way for Ron DeSantis, you have to ask, why would they?

Trump Faces Obstruction Charges and Courts May Not Save Him