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Editor’s note: The following comment was first published on the author’s blog: Res ipsa loquitur – The thing speaks for itself.
The release of the first part of Jack Smith’s report at midnight on Tuesday night was the special prosecutor’s version of the Supreme Court Dobbs decision: we’ve seen it before.
Putting aside the public filings in which Smith struggled to extract this information before the election, there was little new in the report. What the report did not contain was an explanation how Smith destroyed his own cases against Trump. One notable element, however, was Smith’s reliance on the dubious concurrence of Supreme Court Justice Ketanji Brown Jackson, the subject of a previous column on my blog about what would be an interpretation that was too clever by half.
Much of the report was vintage Smith in rejecting compensatory precedent and insisting that he could “obtain and maintain a conviction at trial.” He may be right about getting a conviction against Trump in front of a Washington, DC jury and a highly motivated judge. However, he would not be able to sustain any conviction – and this report makes that abundantly clear.
Smith repeats the same conclusive evidence, such as stating how Donald Trump he said “fight” ten times in his speech on January 6, 2021. He minimized the immunity ruling by removing some evidence, but mostly kept the original indictment. However, the treatment of interference claims was the most telling and indicative of Smith, who repeatedly lost cases due to excessive constitutional and statutory authority.
The Supreme Court’s decision in Fischer v. United States rejecting the use of obstruction of justice against defendants on January 6 will potentially affect hundreds of cases. For some, it can lead to a dismissal or, in cases with multiple charges, a re-conviction.
One of those cases that will be affected is the ongoing prosecution of President-elect Donald Trump, who faces four charges, including two counts of obstruction. It was unclear whether special prosecutor Jack Smith would budge on the decision or perhaps follow the dubious path laid out by Judge Ketanji Brown Jackson in her concurrence.
However, Smith tended to push the law to its breaking point to burden the accused. This was the case when his conviction about former Virginia Governor Robert F. McDonnell was unanimously struck down as an overextension of the second law.
like me wrote earlier after the decision, “Doubtful yes [Smith] will go quietly into the night after the Fischer decision.” In most cases, the prosecutor would come back and secure a superseding indictment in light of losing the tampering claims. Those claims were central to the government’s narrative toward Trump’s indictment. However, I wrote that it was “not Smith’s style” yield to precedent and that he would probably “take a not-so-subtle cue from Jackson in her congruence.”
TRUMP CALLS JACK SMITH “DESPERATE” AFTER SPECIAL COUNSEL’S REPORT IS RELEASED AFTER MIDNIGHT
Jackson supported the majority in concluding that the interference provision, section 1512(c), was enacted after Enron case for dealing with the destruction of documents and records.
Section 1512(c)(1) prohibits corruptly obstructing an official proceeding by altering, destroying, mutilating, or concealing a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding. However, another provision under section (c)(2) allowed charges that would “otherwise” interfere with, affect, or interfere with official proceedings. The Court held that interference cases under Section 1512(c)(2) must be related to an impairment of the integrity or availability of the evidence.
However, in one legal concurrence, she added a way Smith and other prosecutors could still fit Jan. 6 into the Section 1512 offense:
“That official procedure [Congress’s certification of the Electoral College vote] clearly used certain records, documents, or objects—including, but not limited to, those relating to the electoral votes themselves. And it is quite possible that Fischer’s conduct, as alleged here, involved impairing (or attempting to impair) the availability or integrity of items used during the January 6 proceeding “in ways other than those set forth in (c)(1). ” Ante, at 8. If so, then Fischer’s §1512(c)(2) prosecution can and should proceed. That question remains available to the lower courts to decide on remand.”
Once again, no other Supreme Court justices joined Jackson in concurring.
Right on cue, Smith revealed that he would do exactly what I had feared by taking a stand supported by a single justice. In his report, Smith wrote:
“Obstruction by Mr. Trump and his co-conspirators involved the substitution of valid election certificates from disputed states with false ones of their own making — the Bureau anticipated the possibility of such a result in Fischer and affirmed that the evidence would prove Mr. Trump’s guilt beyond a reasonable doubt even under a narrow interpretation of Section 1512(c)(2).”
The very claim that the proceedings are about “certain files” is obviously artificial and forced. Even the submission of an alternative list of voters is not the destruction of voters certified by the secretaries of state.
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Federal law allows challenges in Congress, which Democrats have previously used without alleging sedition or attacks on democracy. J6 Committee Chairman Bennie Thompson, D-Miss., voted to challenge the certification of President George W. Bush’s 2004 re-election results; committee member Jamie Raskin, D-Md., tried to challenge Trump’s certification in 2016. Both did so under the same law that Trump’s supporters in Congress used in 2020. And then Speaker of the House of Representatives Nancy Pelosi and Senate Judiciary Committee Chairman Dick Durbin, D-Ill., praised the challenge organized by then-Sen. Barbara Boxer, D-Calif., 2004.
Special Prosecutor Jack Smith announces the indictment of former President Donald Trump during a news conference on August 1, 2023 in Washington, DC (Getty Images)
Those challenges under the same loose theory could be seen as an attempt to deny or destroy state certificates. That, in my opinion, would likely result in another reversal. However, Smith is always more about securing convictions than maintaining appeals. That’s why he started a second case in DC, where he got the best possible judge for the prosecution, a judge who many consider predisposed against Trump.
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At the rebel’s sentencing hearing on January 6, 2022, Chutkan said the rebels “were there in loyalty, loyalty, to one man — not to the Constitution.” Then she added, “[i]it is a blind devotion to one person who, by the way, remains free to this day.” This “one person” Smith then brought to her trial.
Therefore, Smith intended to proceed with the theory of uniform justice with the help of a favorable jury and a motivated judge. Little has changed for Smith since his unanimous reversal in the McDonnell case, which appears to be in large part the reason for his appointment.
