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.
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.