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Editor’s note: The following comment was first published on the author’s blog. Res ipsa loquitur – it speaks for itself.
The first part of the Jack Smith report, released late Tuesday night, was the special counsel’s version of the Supreme Court’s report. Dobbs’ decision: We’ve seen it before.
Aside from the public records that Mr. Smith fought to release this information before the election, there was little new in the report. What was not mentioned in the report was How Smith threw out his case against Trump. But one notable element is that Smith relied on a dubious concurrence by Supreme Court Justice Ketanji Brown Jackson, which I previously wrote about in my blog on What Is a Half-Clever Interpretation? This was the subject of his column.
Much of the report argued that Mr. Smith denied countervailing precedent and that “conviction can be obtained and sustained at trial.” He may be right about getting a conviction in front of a Washington, D.C., jury and a judge who is highly motivated by Mr. Trump. However, he would not have been able to sustain his conviction. And this report makes that abundantly clear.
Smith repeats the same smoking gun, including quoting Donald Trump saying “I’ll fight” 10 times in his January 6, 2021 speech. He minimized the immunity decision by removing some evidence, but kept much of the indictment intact. But the handling of obstruction claims was the most thought-provoking for Smith, who has lost many cases for overextending his constitutional and statutory authority.
Justice Department releases former special counsel Jack Smith’s report on Trump’s election interference investigation
The Supreme Court’s Jan. 6 decision in Fisher v. United States denying the use of procedural obstruction against defendants could affect hundreds of cases. For some, it could lead to dismissal or, if there are multiple charges, re-prisonment.
One of the cases affected is the pending prosecution of President-elect Donald Trump, who has been indicted on four charges, including two counts of obstruction. It is unclear whether Special Counsel Jack Smith will succumb to this decision or may choose the questionable path laid out with the concurrence of Judge Ketanji Brown Jackson.
However, Smith had a tendency to push the law to its breaking point to corner defendants. Such was the case when his conviction against former Virginia Governor Robert F. McDonnell was unanimously overturned for overstretching another law.
As for me I wrote it before After the verdict: “I doubt that.” [Smith] “We’re going to have a quiet night after the Fisher decision.” In most cases, prosecutors will retroactively secure a replacement indictment given the loss of the obstruction allegation. These allegations were central to the government’s story under the Trump indictment. But bowing to precedent is “not Smith’s style” and he is likely to “take a not-so-subtle hint from Jackson in agreeing to her,” I wrote.
President Trump calls Jack Smith ‘hopeless’ after special counsel report released after midnight
Mr. Jackson supported the majority’s view that Section 1512(c) of the obstruction clause was enacted after enactment. enron Litigation addressing destruction of documents and records.
Section 1512(c)(1) alters, destroys, mutilates, or conceals a record, document, or other object for the purpose of impairing the integrity or availability of the object for use in an official proceeding. prohibits unauthorized interference with official procedures. However, the second provision under section (c)(2) permitted charges that could “otherwise” impede, affect, or impede a formal proceeding. The court held that an interference case under section 1512(c)(2) must involve impairing the integrity or availability of evidence.
But she added how, in a single plea agreement, Smith and other prosecutors may still be able to force Jan. 6 into a violation of Section 1512.
“The formal procedure is [Congress’s certification of the Electoral College vote] The overt use of certain records, documents, or objects (including, among other things, those relating to the electoral vote itself); And, as alleged here, Fisher’s conduct included “the availability of the materials used during the January 6 litigation in ways other than those specified in subparagraph (c)(1).” or may have involved impairment (or attempted impairment) of integrity.” Ant., 8. If so, Fisher’s prosecution under §1512(c)(2) can and should proceed. The issue is left for the lower court to decide on remand. ”
Again, other Supreme Court justices did not join Jackson.
Flashback: Attorney General Garland appoints special counsel to investigate President Trump’s Mar-a-Lago documents (January) 6
Soon Smith made it clear that he intended to do exactly what I had feared, in taking a stand supported by a single judge. Smith wrote in his report:
“Mr. Trump and his co-conspirators’ interference included replacing valid electoral certificates in disputed states with fake electoral certificates of their own fabrication. Even under a narrow interpretation of section 1512(c)(2), there is reasonable doubt. ”
Merely saying that a proceeding involves “certain records” is clearly artificial and coercive. The submission of a replacement slate of electors does not constitute an annulment of the electors certified by the Secretary of State.
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Federal law allows for challenges in Congress, and Democrats have previously used challenges without alleging insurrection or attacks on democracy. J6 Committee Chairman Bennie Thompson (D-Mississippi) voted to object to the certification of President George W. Bush’s 2004 reelection results. Committee member Jamie Raskin, D-Md., tried to challenge President Trump’s certification in 2016. Both filed challenges based on the very law used by President Trump’s supporters in Congress in 2020. and then-House Speaker Nancy Pelosi and Senate Judiciary Committee Chairman Dick Durbin, a Democrat. The Illinois senator praised the challenge organized by then-Sen. Barbara Boxer, California Democrat, 2004.
Special Counsel Jack Smith holds press conference in Washington, DC on August 1, 2023 to announce indictment of former President Donald Trump (Getty Images)
These challenges, based on the same loose logic, could have been seen as attempts to invalidate or destroy certification from the state. In my view, there will probably be further reversals. But Smith has always prioritized winning convictions over pursuing appeals. That’s why he filed a second case in Washington, D.C., where he was appointed the best possible judge for prosecutors, a judge seen by many to be favorable to Mr. Trump.
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At the rioters’ sentencing hearing on January 6, 2022, Chutkan said the rioters “were there loyal, loyal to one man, not to the Constitution.” She further added: ”[i]It’s blind loyalty to a person, who, by the way, remains free to this day. ” That “someone” was then brought before her by Smith for trial.
So Smith, with the help of a sympathetic jury and a motivated judge, tried to advance his single-judge theory. Little has changed for Smith since the unanimous reversal in the McDonnell case, which appears to be a big reason for his appointment.
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