Editor’s note: The following commentary was first published on the author’s blog: Res ipsa loquitur – The thing itself speaks.
The release of the first part of Jack Smith’s report at midnight on Tuesday night was the special counsel’s version of the Supreme Court’s Dobbs decision: we had seen it before.
Putting aside the public filings where Smith fought to get this information out before the election, there was little new in the report. What the report did not contain is an explanation of how Smith destroyed his own cases against Trump. However, one notable element was Smith’s reliance on a dubious concurrence by Supreme Court Justice Ketanji Brown Jackson, the subject of a prior column on my blog about what would be an interpretation that was too clever by half.
Much of the report was vintage Smith in dismissing countervailing precedent and insisting that he could ‘obtain and sustain a conviction at trial.’ He may be right about obtaining a conviction before a Washington, D.C. jury and a highly motivated judge against Trump. However, he would not have been able to sustain any conviction — and this report makes that abundantly clear.
Smith repeats the same conclusory evidence, such as citing how Donald Trump said ‘fight’ ten times in his January 6, 2021, speech. He minimized the immunity decision by removing some evidence but kept largely the original indictment. However, the treatment of the obstruction claims was the most telling and indicative of Smith, who has repeatedly lost cases due to overextending constitutional and statutory authority.
The Supreme Court’s decision in Fischer v. United States rejecting the use of obstruction of legal proceedings against January 6th defendants will potentially impact hundreds of cases. For some, it may lead to dismissals or, in cases with multiple charges, resentencings.
One of those cases that will be impacted is the pending prosecution of President-elect Donald Trump who is facing four charges, including two obstruction counts. It was not clear if Special Counsel Jack Smith would yield to the decision or possibly take the dubious path laid out by Justice Ketanji Brown Jackson in her concurrence.
