Smith is trying to stretch Section 1512 in hopes of bypassing a potential ruling deeming the government’s abuse of the law illegal.
As legacy media rushed to elevate the special counsel’s arguments against Trump’s immunity claims, they ignored a footnote in Monday’s filing that telegraphs how Smith will attempt to have the former president convicted on several counts — even if those same charges are effectively dismissed in a separate case by SCOTUS.
[RELATED: 6 Ways Jack Smith’s Latest Indictment Is Legally Flawed And Politically Shady]
The footnote in question pertains to 18 U.S. Code § 1512(c), which carries up to a 20-year prison sentence for anyone who “corruptly”:
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.
Two of the four charges Smith filed against Trump are based on 1512(c). Smith’s preferred reading of the statute would allow the DOJ to interpret subsection (2) incredibly broadly. As previously reported, the statute’s “obstruction of an official proceeding” provision has also been used by federal authorities “to charge so far more than 300 [Jan. 6] defendants with felonies in the [past] three years.”
“It’s the most frequently charged Jan. 6 felony, and the basis for keeping many protesters in jail without bond for months or even years before they reached trial,” Justice noted. “It’s never before been used in the way the DOJ has applied it to Jan. 6 protesters.”
A lawsuit challenging the Justice Department’s abuse of the statute is currently being considered by the Supreme Court, with oral arguments in Fischer v. United States to be heard on April 16. Joseph Fischer, a Jan. 6 defendant, argues the second half of the statute isn’t a license to prosecute anything that “otherwise” impeded a proceeding but rather should be interpreted as a modifier to the first half of the statute. In other words, as Professor Margot Cleveland explained, the argument is that “the statute only criminalized conduct that rendered evidence unavailable to an ‘official proceeding.’”
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.