Special Counsel Jack Smith is dealing with a potential legal challenge in his case against former President Donald Trump related to the obstruction statute (18 USC §1512(c)(2)). The US Supreme Court announced it would hear oral arguments in Fischer v. United States, which questions the interpretation of the statute.
The statute defines obstruction of justice as intentionally impairing the integrity or availability of evidence for use in an official proceeding. The Supreme Court’s decision on Fischer could potentially impact hundreds of ongoing cases, including two charges against Trump related to conspiracy to obstruct in Jack Smith’s case.
Smith appears to be preparing for the possibility that the Supreme Court may rule in favor of the petitioner in Fischer. This decision could challenge the interpretation of the statute used to charge Trump and others involved in the January 6 Capitol riot.
To mitigate the impact of a Supreme Court reversal, Smith is arguing that even if the court deems the use of 18 USC §1512(c)(2) unlawful, related charges against Trump should still be valid. Smith claims Trump somehow impaired evidence for use in an official proceeding, specifically citing the use of “alternative electoral certificates” as fraudulent documents.
Smith asserts that even if the Supreme Court adopts the petitioner’s interpretation in Fischer, the use of falsehoods and creation of “false” documents satisfies the requirement for evidence impairment.
In essence, Smith is looking for ways to navigate around a possible unfavorable Supreme Court ruling by asserting other interpretations of the statute. This approach might allow him to maintain the charges against Trump even if the Supreme Court reverses the obstruction statute.
A decision in Fischer’s favor would seemingly negate the two 1512(c)-related charges against Trump and “upend hundreds of charges filed by federal prosecutors against those present at the Jan. 6 Capitol riot,” according to Justice.
In an apparent attempt to sidestep such a ruling, however, Smith argued in his Monday brief that even if SCOTUS deems the DOJ’s use of 1512(c)(2) unlawful, the related charges filed against Trump should still stand because Trump somehow impaired evidence for use in an official proceeding.
“Petitioner asserts … that the grant of review in Fischer v. United States … suggests that the Section 1512(c)(2) charges here impermissibly stretch the statute. But whether the Court interprets Section 1512(c)(2) consistently with a natural reading of its text or adopts the evidence-impairment gloss urged by the petitioner in Fischer, the Section 1512 charges in this case are valid,” Smith wrote, additionally claiming that “the use of falsehoods or creation of ‘false’ documents satisfies an evidence-impairment interpretation.”
