‘Defendant fails’: Jack Smith rips Trump’s ‘half-hearted’ dismissal bid in Jan. 6 case for being wrong on the law

Special counsel Jack Smith on Wednesday spent several pages savaging Donald Trump‘s latest efforts to dismiss the superseding indictment against him in the Jan. 6 case as equal parts legally unconvincing and as not really much of an effort to begin with.

On Oct. 3, attorneys for the 45th president filed a 14-page supplement to a motion to dismiss. The motion to dismiss was originally filed last October; the supplement essentially makes the case for dismissal anew in light of the U.S. Supreme Court’s creation of presidential immunity for criminal prosecution this summer.

“The defendant’s new arguments in his supplemental brief fail to bolster his case for dismissal,” Smith argues in the government’s response. “The defendant’s statutory motion to dismiss, as supplemented, should be denied.”

The defense principally argued that another recent-vintage Supreme Court case — also about the Jan. 6 attacks — supported the dismissal of two of Trump’s obstruction-related charges — and that such a dismissal would, in turn, undermine the rest of the government’s case.

In that high court case, stylized as Fischer v. United States, the justices reined in the government’s ability to prosecute people for the statute criminalizing the obstruction of an official proceeding. The court ruled the government must prove a “defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects or as we earlier explained, other things used in the proceeding, or attempted to do so.”

Smith says Trump’s motion misreads the holding.

“The Fischer decision clarified the scope of an obstruction offense under Section 1512(c)(2), but it did not strike down the statute or rewrite it,” the response reads. “The superseding indictment recites the statutory language and provides ample notice to the defendant of the obstruction charges against him, which is all that is required to defeat a motion to dismiss.”

To hear the government tell it, the government’s burden at the present stage is enough to satisfy the Fischer decision and any lingering questions about whether the statutory confines of the law have been met are something that should be dealt with near the tail-end of the process: in jury instructions.

“Fischer did not invalidate Section 1512 or elevate basic pleading requirements, and the defendant fails to identify any pleading flaw in the superseding indictment warranting its dismissal,” Smith says.

Moreover, the government says the defense simply trotted out the Fischer case without properly analogizing the facts to the Jan 6. case. And there, Smith argues, the current prosecution is on firm precedential footing.

“[T]he 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 government’s response reads.

Here, Smith and his team are making the case that the so-called “alternate” or fake electors scheme is an integral part of the Jan. 6 case — and that these allegations put the prosecution’s efforts squarely in line with the Supreme Court’s edict in Fischer.

The filing elaborates on this issue at length:

As construed by Fischer, Section 1512(c)(1) covers impairment of records, documents, or objects by altering, destroying, mutilating, or concealing them, and Section 1512(c)(2) covers the impairment (or attempted impairment) of records, documents, and objects by other means — such as by “creating false evidence.” Just as the defendant in [another case cited by the Fischer majority] violated Section 1512(c)(2) by “inject[ing] a false order into ongoing litigation to which he was a party,” the superseding indictment alleges that the defendant and his co-conspirators created fraudulent electoral certificates that they intended to introduce into the congressional proceeding on January 6 to certify the results of the 2020 presidential election.

In the final two-and-a-half pages of the supplement, Trump’s defense sketches out, briefly, why two additional counts of the superseding indictment should be dismissed.

“Consistent with the fact that the Special Counsel’s Office has failed to present factual allegations suggesting that President Trump acted ‘corruptly’ in Counts Two and Three, the Office has not adequately alleged that President Trump specifically intended to violate individual civil rights as required by §241, or acted deceptively under §371,” the supplement reads.

While employing various citations, the thrust of the defense’s position is that the Fischer analysis disqualifies counts two and three — and therefore counts one and four also must be jettisoned.

This analysis is more than cursory but Smith suggests Trump’s team more or less presented arguments in a largely conclusory fashion — explicitly referring to those arguments as “half-hearted.”

“Finally, the defendant’s underdeveloped suggestion that Counts One and Four should be dismissed because the superseding indictment does not allege that he acted ‘corruptly’ for purposes of Section 1512(c)(2) and therefore fails to adequately allege the required mental states for violating Sections 371 or 241 is meritless,” Smith concludes.

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