The extent of Donald Trump’s immunity from prosecution is the key story in the federal election interference case. But we were reminded on Wednesday that this is not the only problem.
That’s when special counsel Jack Smith filed his response to Trump’s motion seeking to quash the case based on another related Supreme Court ruling from January 6: Fisher v. United States. Judges narrowed the obstruction charges against the Jan. 6 defendants in that case in June. The GOP presidential candidate is accused of obstruction on two of the four charges against him in the federal election interference case, so he wants to use Fisher’s case to get the charges against him dropped.
But not so fast, Smith says. The special counsel wrote in his response on Wednesday:
Defendant’s motion completely ignores that the case against him includes allegations that he and his co-conspirators sought to create and use false evidence—forged election certificates—as a means to obstruct certification proceedings, which Fisher expressly held to fall within section 1512(c)(2). [the obstruction statute].
That means we’re not talking about an ordinary January 6th rioter here. The Supreme Court said in the Fisher case that obstruction law could be violated “by presenting false evidence.” With that in mind, the government, referring to so-called fake electors, states in its new filing that Trump “and others began in early December 2020 to pay individuals to act as purported electors for the defendant in several targeted states with the intent that these individuals “present the individuals and send False certifications to the Vice President and Congress that they were legitimate voters.” (Trump, who is scheduled 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 rejected Trump’s sweeping request for more discovery evidence — will likely be persuaded by Smith’s obstruction argument. But also like the immunity issue 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 has narrowed the government’s use of the obstruction law.
We will only know how far the Roberts court will allow the case to proceed if Trump loses the election, because his new administration is likely to get rid of the case entirely if he wins. In this regard, his lawyers are once again trying to persuade Chutkan to retain information regarding Smith’s high-profile immunity plea, in an apparent attempt to prevent further damaging accusations against him from emerging as voters cast their ballots.
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