The U.S. Supreme Court opened Tuesday’s hearing on obstruction charges against former President Donald Trump and others with deep skepticism, suggesting a line of consideration that is “not going well” for special counsel Jack Smith, according to experts.
Megyn Kelly, writing on X, covered opening statements regarding the charge of “obstructing an official proceeding” which Smith has charged against the former president and hundreds of J6 attendees.
“BIG- Supreme Court arg on whether ‘obstructing an official proceeding’ can form the basis for a crim charge vs J6 Ds (INCLUDING TRUMP – this is the heart of Smith’s J6 case vs him) is not going well for the govt. At all. (All 6 conservatives sound on side of the defense.),” she wrote, adding, “If they side with the defense here, it guts Jack Smith’s DC case against Trump. Huge huge import.”
Investigative reporter Julie Kelly delved further into the legal discussions, highlighting arguments by Jeffrey Green, a lawyer for defendant Joseph Fischer who was a police officer in attendance during the riots.
She noted that conservative Justice Clarence Thomas asked pointedly how a provision in the law cited by Smith – “alters, destroys, mutilates, or conceals a record, document, or other object, with the intent to impair the object’s integrity or availability for use in an official proceeding” – relates to words or actions by Fischer that day.
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Thomas’ question was followed by a slew of others from both conservative and liberal justices regarding the intent of the Founding Fathers in drafting the provision. Kelly adds that Justice Amy Coney Barrett asked Smith if he believes the J6 defendants “did attempt to obstruct with documents, i.e., electoral certificates.” Liberal Justice Ketanji Brown Jackson then asked the prosecutor “whether statute applies to evidence since the word ‘evidence’ doesn’t appear in the language.” Liberal Justice Elena Kagan further confounded Smith’s prosecution when she said the provision – USC 1512: “Tampering With Victims, Witnesses, Or Informants” – could be interpreted multiple ways.
“I think you may be biting off more than you can chew…that the ‘otherwise’ clause can only be read the only way you read it,” conservative justice Samuel Alito told Smith, according to Kelly.
Smith has suggested in previous filings that he will attempt to bypass the Supreme Court if it rejects the obstruction charge.
“Petitioner asserts … that the grant of review in Fischer v. United States … suggests that the Section 1512(c)(2) charges here impermissibly stretch the statute. But whether the Court interprets Section 1512(c)(2) consistently with a natural reading of its text or adopts the evidence-impairment gloss urged by the petitioner in Fischer, the Section 1512 charges in this case are valid,” Smith wrote according to The Federalist, additionally claiming that “the use of falsehoods or creation of ‘false’ documents satisfies an evidence-impairment interpretation.”
In addition to a review of arguments made by defense, Smith is also hamstrung by the other ongoing criminal cases against President Trump. Florida district Judge Aileen Cannon has said she will not proceed with hearings in the classified documents case until Trump can be present, and on Monday Manhattan Judge Juan Merchan ordered the Republican to appear every day for his hush money trial or face arrest. The requirement could set back Smith’s other case against Trump as far as two months, some observers believe.
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