What Jack Smith Has In Mind If The Supreme Court Takes Away His Toy And Leaves Him With Only Worse Theories For His DC Trial
It's Comical What His Fanboys Think He'll Be Able To Do If The Supreme Court Says Violent Conduct Isn't Within The Definition of "Obstruction".
Last week the Supreme Court heard oral argument in the case of United States v. Fischer. The issue in the Fischer case is whether the “go to” felony used by DOJ the past three years against January 6 defendants — a violation of 18 U.S.C. Sec. 1512(c)(2) — actually applies to the events of that day where the crime charged is based on violence and/or property destruction. More than half the Justices expressed various levels of skepticism — some being overtly hostile — about DOJ’s interpretation of the statute based. The issue is one of “statutory construction” and the intent of Congress when it added the statute to a long list of other “obstruction of justice” statutes as part of the “Sarbanes-Oxley” law that followed the ENRON investigation in the early 2000s.
I wrote this lengthy piece on the Fischer case a few weeks before the oral arguments. It provides a comprehensive breakdown of the issue before the Court and the history of SCOTUS decisions involving other criminal statutes interpreted broadly by DOJ and lower courts.
The outcome of the Fischer case will have direct implications on the pending case brought by Special Counsel Jack Smith against former President Trump in the District of Columbia federal court. Two of the four counts of that indictment involve the events of January 6, and the criminal violations come from the same statute. But the fanboys of SCO Smith — and Smith himself in filings he has made in the Florida classified documents case — are claiming that a decision favoring defendants in the Fischer case won’t necessarily extend to the case filed against Trump in D.C.
To understand these seemingly incompatible views, let’s first take a look at the structure of the statute in question and try to divine what it is SCO Smith and his barking seals in the media might think they can pull out of a hat.
Title 18 U.S.C. Sec. 1512(c) reads as follows:
The key to understanding what is at issue in Fischer is to know that the charges being brought against defendants in connection with the events of January 6 under this statute almost always involve (c)(2) — not (c)(1). The question is whether physical violence and property destruction — or even mere presence inside the building or on the grounds after the argument — fall within the phrase “otherwise obstructs, influences, or impedes and official proceeding….”
The issue before SCOTUS is the extent to which — if at all — the language of Section (c)(1), referring to actions taken in connection with records, documents, and objects that impair their use or availability in an official proceeding, limits the universe of conduct intended to be covered by the language of what follows “otherwise” in Sec. (c)(2)?
Under the Canon of statutory construction known as ejustem generis when words of a general nature in a statute or regulation follow ….
No, I wouldn’t do that to you here.
Suffice it to say that more than a majority of the Justices expressed serious reservations about how the DOJ defined the scope of Section (c)(2) within the context of the broader statutory structure in general, and in the context of its relationship to the specific criminal actions defined in Sec. (c)(1) in particular.
Interpreting criminal statutes also falls under another well-established rule — that when there are competing narrow and broad interpretations of a criminal statute, absent a clear signal by Congress that it meant for the broad interpretation to apply, courts are directed to adopt the narrow interpretation in order to save the statute from being challenged on the basis that it is overbroad and therefore vague as to what conduct is actually made unlawful.
Assuming that the SCOTUS comes back with a ruling in Fischer that favors January 6 defendants, why is it that SCO Smith and his barking seals believe that the impact on the D.C. case against former President Trump will not be damaged?
Simply put, they believe that the case can go forward on the basis that the alleged scheme to present alternate slates of Trump electors from states where irregularities in the election process falls within the scope of one or both provisions of Subsection (c).
Subsection (c)(1) makes it illegal to “alter, destroy, mutilate, or conceal” a record or object to be used in an “official proceeding.” One phrasing of the theory going forward would be the alternative slates of “fake electors” as SCO Smith likes to call them, constitute some form of “alteration” of the slates of electors — by fabrication — sent by the Governors of those states with the intent to “impair” Congress’s use of Governor’s slate of electors — or something like that.
There are several problems with this approach.
The first problem is the charges now alleged in the Indictment:
Noticeably absent is a criminal charge that former President Trump violated Section 1512(c)(1). So, strike one for SCO Smith and the barking seals would be that Trump hasn’t been charged with the crime that they think isn’t going to be affected by the Supreme Court’s decision in Fischer.
“Oh but Shipwreck, the count charging a 1512(k) conspiracy to obstruct an official proceeding can also cover by (c)(1) as well as (c)(2) so that count would survive a bad outcome in Fischer.”
A “conspiracy” is an agreement made by two or more people to commit one or more federal crimes. The crime they are alleged to have conspired to commit must be specified in the Indictment, and the overt acts listed in the indictment must related to that specified crime.
Well boys and seals, the problem for SCO Smith is that in the indictment he has brought, the only crime he alleges to have been the object of the conspiracy is Sec. 1512(c)(2) — he never mentions (c)(1).
Maybe that’s a typo. Maybe SCO Smith didn’t mean to ONLY list Sec. 1512(c)(2) when describing the object of the criminal conspiracy covered by Sec. (k). Maybe he can use a little white-out to turn the “.” into a “,” and pencil in “and 1512(c)(1)” followed by his initials to make it official.
Yeah — not. If the fallback theory is to pursue the “fake elector” theory under Sec. (c)(1), to fix this small little problem Smith needs to return to the grand jury, present the new theory of his case along with the evidence he thinks would support that theory, and ask them to return a superseding indictment. While that doesn’t entirely start the clock over again with regard to getting the case to trial, it would be a crippling blow to ANY thought that he might get the case to trial ahead of the Nov. 2024 election.
Which I have maintained from the start will never happen.
A second problem this shift in prosecutorial theory would present — all that sexy video of violence and property destruction he is planning to put into evidence during the trial of those January 6 rioters “obstructing an official proceeding” by breaking out windows, kicking in doorways, fighting with police, and ransacking parts of the Capitol while they were inside — none of that is relevant to a “fake electors” theory of the offense.
If there was a conspiracy or scheme to transmit fake slates of electors for the purpose of impeding the Congressional certification on January 6, those fake slates of electors were delivered to the Congress long before that day.
Don’t take my word for it — SCO Smith says that’s the way it happened:
So, according to Smith, as of December 14, 2020, the “fake elector” plan was complete — the alternate slates of electors had been mailed by to the President of the Senate in accordance with instructions that were given to officials in each of the contested states, i.e., Georgia, Michigan, Pennsylvania, and Wisconsin. The only remaining task to accomplish was to convince former VP Pence to not accept the slates of electors sent by the Governors of those same states on January 6 when Congress met — in a ceromonial manner — to “count” the votes even though everyone paying attention knew already what the vote “count” would be.
And this takes me back to SCO Smith and the seals second problem — none of the evidence of the events taking place involving protesters is relevant to any 1512(c)(1) scheme he might try to bring if he loses the 1512 (c)(2) charges as a result of Fischer.
SCO Smith ABSOLUTELY wants to put a massive amount of that evidence into the trial — including testimony from police officers, members of the House and Senate, and staffers who were inside the Capitol on that day. The trial evidence will certainly involve testimony by former VP Pence, and he will undoubtedly be asked questions about his evacuation from the Capitol by the Secret Service.
That would be admissible except for the fact that none of those events are relevant when the “obstruction of an official proceeding” scheme or conspiracy was complete as of mid-December 2020 — as would be the case under a charge based on Sec. 1512(c)(1).
Now, there is a universe in which SCO Smith might attempt — and his barking seals would applaud — a legal rationalization that his EXISTING charge of a violation of Sec. 1512(c)(2) is a valid basis to pursue to the “fake elector” theory. The claim would be that the “fake elector” effort was a type of criminal scheme falling within (c)(2)’s language prohibiting conduct that “otherwise corruptly obstruct(s) an official proceeding.” There is a superficial advantage to doing it this way rather than trying to fit the allegations of the pending indictment into Sec. (c)(1)’s language about impairing records, data, or objects — requiring a trip back to the grand jury.
The theory would be that creating and transmitting the alternate “fake elector” slates to the President of the Senate fits within the meaning of conduct “otherwise” intending to obstruct the proceedings on January 6.
This would involve stripping away many of the allegations set forth in the indictment as it exists now, eliminating all the evidence concerning the conduct of the crowd, and — most importantly — risking that this theory falls right into the process that Congress created for itself on January 6 as detailed in the Electoral Count Act at 3 U.S.C. Sec. 15.
The origins and evolution of the Electoral Count Act, including the 2022 amendments that followed the controversy of the 2020 election, is the subject for a different article at another time. But for our purposes here, the Act as it existed in January 2021 contemplated a process during Congress’s ceremonial vote count that allowed for the making objections to the counting the slate(s) of electors transmitted from state governors. The “alternative slates” put forward by Trump’s supporters were not necessary to trigger the opportunity to object and thereby “obstruct” the proceeding — Congress created that process for itself without regard to the delivery of such alternative slates.
The electors on those alternative slates didn’t have the right to object during the counting of electoral votes and thereby “obstruct” the proceedings — only Members of Congress could do so. They gave themselves that ability to obstruct their own proceedings. Congress could have ignored the alternative slates that were received — they could have set them on fire without consequence to the process.
What SCO Smith and the barking seals are really counting on is the FACT that it does not matter what theory they get before a D.C. jury, the outcome of the case is a foregone conclusion. Any D.C. juror — with 95% having voted against a second Trump term in 2000 — will see a criminal trial as an opportunity to deny him the opportunity to be elected in 2024 by an alternative means of voting — being one of 12 needed to convict him.
So, in that regard, SCO Smith’s fallback position from an adverse SCOTUS ruling in Fischer is really one of “anything that I can get to the jury will work, it doesn’t matter how stupid or nonsensical it might be.”
And the barking seals in the media go crazy in celebrating his brilliance.
One of the more amusing exchanges on Tuesday was the Solicitor General doing backflips to explain how the ultra-broad plain reading of the (c)(2) subsection should be the sole guiding light (nothing atextual allowed), but then she wanted to READ OUT of the statute the words following "otherwise obstructs" - "influences or impedes" - so that its application to such things as "peacefull protests" would not be too broad. Only a broad could do that, some would say.
Were any of the justices smiling while that was going on? Any laughter in the gallery?
The biggest problem is the January 6th riot actually blocked the objections to the vote counts. The conspiracy theory is why the riot was allowed to happen and why the capital police waved everyone in was to stop the objections to certain states vote counts.