Why Jack Smith is leaning on the fake electors scheme to try to save his Trump Jan. 6 case
The extent of Donald Trump’s immunity from prosecution is the main event in the federal election interference case. But we were reminded on Wednesday that it’s not the only issue.
That’s when special counsel Jack Smith filed his response to a Trump motion that seeks to crush the case based on another Jan. 6-related Supreme Court ruling: Fischer v. United States. The justices narrowed obstruction charges against Jan. 6 defendants in that case in June. The GOP presidential nominee is charged with obstruction in two of his four counts in the federal election interference case, so he wants to harness the Fischer case to dismiss his charges.
But not so fast, Smith says. The special counsel wrote in his response on Wednesday:
The defendant’s motion ignores entirely that the case against him includes allegations that he and his co-conspirators sought to create and use false evidence — fraudulent electoral certificates — as a means of obstructing the certification proceeding, which Fischer expressly held falls within Section 1512(c)(2) [the obstruction statute].
That is, we’re not talking about a run-of-the-mill Jan. 6 rioter here.
The Supreme Court said in Fischer that it’s possible to violate the obstruction statute “by creating false evidence.” With that in mind, the government, referring to so-called fake electors, recounts in its new filing that Trump “and others began in early December 2020 to cause individuals to serve as the defendant’s purported electors in several targeted states with the intent that those individuals ‘make and send to the Vice President and Congress false certifications that they were legitimate electors.’” (Trump, who’s due to be sentenced after Election Day next month in another of his four criminal cases, has pleaded not guilty in his federal election case.)
If her past practice is any guide, U.S. District Judge Tanya Chutkan — who just largely rejected Trump’s sweeping bid for more discovery evidence — will likely be persuaded by Smith’s obstruction argument. But like the immunity issue that’s also pending before her, what she thinks won’t necessarily matter much. It will be up to the same Supreme Court that granted Trump broad immunity in the first place and narrowed the government’s use of the obstruction statute.
And we’ll only find out how far the Roberts Court will let the case go if Trump loses the election, because he’ll likely have his new administration get rid of the case entirely if he wins. On that note, his lawyers are again trying to get Chutkan to keep information under wraps pertaining to Smith’s big immunity brief, in an apparent effort to prevent yet more damaging allegations about him from emerging as voters cast their ballots.
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