Jack Smith False elector scheme saves Trump obstruction charges

A new brief from the special counsel downplays and sometimes ridicules arguments made by Trump’s lawyers.

Donald Trump’s effort to assemble false slates of presidential electors in 2020 may wind up shielding special counsel Jack Smith’s case from a Supreme Court ruling that could sharply narrow the obstruction law at the heart of the indictment against the former president.

Smith argued Monday that even if the justices agree with a recent challenge — brought by several defendants charged with obstructing Congress’ work on Jan. 6, 2021 — the charges against Trump relying on the same law would still survive.

It’s Smith’s first indication that he isn’t sweating the Supreme Court’s impending decision in the obstruction case, which the justices agreed to take up in December and has often been cast as one of the greatest threats to the case against Trump.

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The Jan. 6 defendants who brought the challenge to the high court say the Justice Department has misused the 20-year-old obstruction law against pro-Trump rioters. The statute was only meant to apply to evidence tampering — like document shredding in the Enron accounting scandal — and not to more general efforts to prevent Congress from meeting, they say. The Supreme Court’s decision to take up the case hinted at the likelihood that the justices may be sympathetic to some of their arguments.

While the justices’ decision on the obstruction charge could — in theory — jeopardize two of the four felony counts Trump faces in the election-related federal case, Smith’s team said in a new brief that those charges could be proven even if the justices side with the Jan. 6 defendants in the case to be argued before the justices on April 16, Fischer v. United States.

Trump’s “efforts to use fraudulent electoral certifications rather than genuine ones at the Joint Session” mean the debate about the scope of the obstruction statute shouldn’t impact the case against him, Smith and his team wrote in a brief filed Monday evening disputing Trump’s claims that he enjoys immunity from prosecution because his actions were tied to his official duties as president.

That’s because Trump’s bid to enlist allies in seven swing states — all won by Joe Biden — to sign certificates claiming to be genuine presidential electors qualifies as obstruction even under the narrower interpretation of the law.

Smith’s brief leans in favor of the Justice Department’s position in Fischer, suggesting that it follows from a plain reading of the statute. However, the special counsel acknowledges the position taken by one district court judge in Washington that prosecutors proceeding under that statute have to show that the alleged obstruction involved some kind of attempt to tamper with evidence or documents.

“Whether the Court interprets [that provision] 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.

The overall thrust of Smith’s new brief, submitted in advance of high-stakes oral arguments set for April 26, is that acceding to Trump’s broader immunity arguments would convert the presidency into an authoritarian post by removing one of few constraints on presidents obeying the will of voters.

“The effective functioning of the Presidency does not require that a former President be immune from accountability for these alleged violations of federal criminal law,” Smith’s team wrote. “To the contrary, a bedrock principle of our constitutional order is that no person is above the law—including the President. Nothing in constitutional text, history, precedent, or policy considerations supports the absolute immunity that petitioner seeks.”

While Smith’s brief swings for the fences by urging the justices to deny Trump’s immunity claim outright, the special counsel includes several fallback arguments aimed at saving his case against the former president even if a majority of justices have misgivings about applying criminal law to a former president.

Smith downplays and sometimes ridicules arguments by Trump’s lawyers that allowing him to be prosecuted for conspiring to cling to the presidency could lead to presidents someday being prosecuted for ordering drone strikes or alleged lying about the reasons for a war abroad.

“Those examples involved quintessential exercises of the President’s Commander-in-Chief power during war or to protect the Nation from foreign threats,” Smith wrote. “Attempts by Congress to regulate the President’s exercise of those authorities through the criminal laws would raise the sort of serious separation-of-powers concerns that are absent here.”

The special counsel also argues that if the justices are inclined to side with Trump’s claim that he’s fully immune from prosecution for acts that involved his official duties, prosecutors should be allowed to try to prove the case without such acts.

“At the core of the charged conspiracies is a private scheme with private actors to achieve a private end: petitioner’s effort to remain in power by fraud. Those allegations of private misconduct are more than sufficient to support the indictment,” Smith wrote.

The most formidable obstacle Smith is facing at the moment is the calendar. While Trump is scheduled to go on trial in New York next week on state charges that he falsified business records in connection with hush money payments during the 2016 presidential campaign to women claiming sexual affairs with him, neither of the federal criminal cases against Trump looks likely to head to trial anytime soon.

Proceedings in the election-related case in Washington have been suspended since December and are expected to remain on ice until the Supreme Court rules on the immunity question.

A separate case Smith brought in Florida over Trump’s alleged hoarding of classified documents at his Mar-a-Lago home is officially scheduled for trial May 20, but all sides and the judge appear to agree that date isn’t viable. The judge has yet to set a new one.