Hoist By His Own Petard? Or, Does Jack Smith Have No More Authority Than Taylor Swift?

And: Did Jack Smith simply make up a "crime" for the persecution of President Trump?

With apologies to The Bard for the egregious offense of using a phrase from Hamlet in the title in the same sentence as the execrable Special Persecutor Jack Smith but a few developments in the last few weeks do seem to indicate that he may have “blown himself up” in several legally signifcant ways. To flesh out some of these events and their potential importance it is necessary to “get into the [legal] weeds” but hopefully the journey will prove worth the effort.

In an effort to gain as much clarity as possible out of the rubble left in the wake of the vicious lawfare being waged by Smith and his bosses it might be helpful to survey some of the recent writings on the subject to determine if just a tad of optimism may be warranted.

While there seems to be a new indictment of the former and, as many including yours truly think, next President, this piece will take a look at just two aspects of the so-called January 6 case filed in the Federal District Court in the District of Columbia. A decision in Trump’s favor on either one would likely put an end to Smith’s persecutorial rampage against President Trump. A favorable decision on one of the two points carries the potential of upsetting the convictions and draconian sentences of many of the January 6 defendants, an outcome too delicious to even imagine much less hope for.

I. Did Smith Charge President Trump with “Crimes” Which Are Not Crimes At All?

Among the several sources of reliable reporting and analysis of developments coming out of the January 6 expression (for by far the largest portion of those who were arrested of their rights as American citizens to free speech and peaceable assembly) are two excellent journalists - Yes, Virginia, there remain in our America today a few of those- one of whom is Julie Kelley, probably the preeminent source of information we are not supposed to ask about much less know about concerning January 6. Another is Margot Cleveland, highly respected appellate attorney who writes for The Federalist.

Cleveland sets out a very clear and concise presentation of the question now before the Supreme Court in a column entitled SCOTUS To Rule If Jack Smith’s Get-Trump Charges Are Even Crimes. After sketching out the background of how the question made its way to the High Court and how it may impact the DC case, she sets out the relevant provisions as follows:

Earlier this month, the Supreme Court agreed to hear Joseph Fischer’s appeal that presents the question of whether 18 U.S.C. § 1512(c) criminalizes acts unrelated to investigations and evidence that obstructs an “official proceeding.” Fischer, like Trump, was charged with violating § 1512(c) by engaging in conduct on Jan. 6 that obstructed the certification of the electoral vote. 

The question for the Supreme Court in the Fischer case is one of statutory interpretation. Thus to understand the issue requires a detailed study of the specific language of § 1512(c). That section, titled “Witness, Victim, or Informant Tampering,” provides:

(c) Whoever corruptly — 

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or 

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, 

shall be fined under this title or imprisoned not more than 20 years, or both.

Fischer and Trump, as well as scores of other Jan. 6 defendants, were charged with violating subsection 2 of § 1512(c) by “otherwise” obstructing or impeding the certification of the electoral vote. In Fischer’s case, he asked the trial court to dismiss the § 1512(c) charge, arguing the statute only criminalized conduct that rendered evidence unavailable to an “official proceeding.” The district court agreed and dismissed the § 1512(c) count against Fischer. The government appealed to the D.C. Circuit Court of Appeals, which in a 2-1 decision reversed the lower court, with the two-judge majority holding that § 1512(c) criminalized any conduct that obstructed or impeded an official proceeding, whether that conduct impaired the availability of evidence or not, leading the Supreme Court to grant certiorari.

She then discusses the 2008 Supreme Court decision which may put an end to the damage done by Smith to the Rule of Law, Begay v. US, involving similarly vague language in a statute- in fact, the same word - in which

The majority in Begay held the defendant’s prior felony DUI conviction did not constitute a “violent felony” under the “otherwise” language of the statute because “the provision’s listed examples — burglary, arson, extortion, or crimes involving the use of explosives — illustrate the kinds of crimes that fall within the statute’s scope,” and “their presence indicates that the statute covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’”

In reaching this conclusion, the Begay court stressed that in interpreting statutes, courts must seek “to give effect … to every clause and word” of the statute. The majority further reasoned that if the “otherwise” language meant to cover all crimes that present a “serious potential risk of physical injury,” there would have been no reason for Congress to have included the examples.

It seems to me, as it did to Cleveland, a lawyer with extensive experience in Federal Appellate Law and Procedure, that the Begay ruling should compel a similar conclusion in the Fischer case that 1512©(2) only criminalizes conduct that “otherwise” obstructs an “official proceeding”:

The conduct prohibited by subsection 1 of § 1512(c) all concerns the impairment of evidence for an official proceeding, by criminalizing the alteration, destruction, mutilation, or concealment of “a record, document, or other object…” Thus, under Begay’s reasoning, to constitute a crime under subsection 2 of § 1512(c), the indictment must charge that Fischer (or the other defendants) “otherwise” impaired evidence for use in an official proceeding.

For those wishful thinkers, and I am firmly in that number, who may see these developments as offering a real hope that there may finally be an end to this totalitarian barbarity, Julie Kelley, in 2024: All Eyes on SCOTUS, sounds a very well founded note of caution:

Not every case before SCOTUS next year will have originated at the DOJ. Republicans just filed a petition before the highest court seeking to overturn the Colorado Supreme Court’s order removing Trump from the primary ballot. Justices can put a stop to the 14th Amendment “insurrection” nonsense, halting the Left’s abuse of the provision to keep Trump and other “insurrectionist” Republicans out of office.

But what if they don’t? That’s the nagging question in the collective mind of the MAGA Right—will the court balk on every controversial matter from presidential immunity and the 14th Amendment to 1512(c)(2) and beyond? The recent conduct of Brett Kavanaugh and Amy Coney Barrett, not to mention the historical conduct of Chief Justice John Roberts, does little to inspire confidence among the base. Nothing, even the most layup case, is a given.

A safe bet is the court will work hard to appear impartial, where half the cases go Trump’s way and the other half don’t. Deny Smith’s speedy cert motion but also deny Trump’s challenge to the immunity order. Overturn Colorado Supreme Court but uphold 1512(c)(2). Toss out a few lower level J6 convictions but refuse to consider high-profile convictions for “domestic terrorists.”

At a time when the scales of justice are so unbalanced, a self-conscious SCOTUS seeking to appear balanced might be the most dangerous threat of all.

For one of the best discussions I have seen of the Kafka-esque maze of procedural twists and turns this case (and many other January 6 cases with it) could involve as we move toward Election Day 2024 one should turn to a blog piece entitled Is The Supreme Court Derailing U.S. v. Trump Without Leaving Any Fingerprints Behind? by Bill Shipley, writing as “shipwreckedcrew” on Substack. The author is a higly respected attorney whose special credentials include being Defense Counsel for a January 6 defendant. Here, after his thoroughly researched analysis, is his prognosis of where all this is headed:

But the one anomaly in this sequence of events that is unexplained — but makes sense under this scenario — is the decision by the Court to announce it would hear the Fischer case the morning after the D.C. Appellate Court exposed nakedly partisan motives by advancing consideration of Trump’s appeal of the immunity issue for sole purpose of trying and preseve the March 4 trial date.

By saying the very next morning that it would take up the case seeking review use of the criminal charge at the heart of the D.C. District Court case against Trump, the Court basically “called and raised” the Appellate Panel’s bet. It did so without tipping its hand on what it might ultimately do regarding taking up the immunity issue itself, or what schedule it might put in place if it does so.

The Fischer case will play out at normal speed. and the Court can always stay lower court proceedings while it considers the question on the basis of “judicial economy” and not expending resources unnecessarily.

I’m going to stick with the prediction I have made and repeated since the March 4 trial date was first set — the case filed by SC Smith in the District of Columbia will not go to trial on March 4, and I do not think it will go to trial at any time prior to the November 2024 election — if it goes to trial ever.

We know that Mueller and Weismann and their pack of attack dogs spent over 30 Million Dollars of our money to get Trump and every single dollar of it just circled the drain as they never got even close to their declared goal. Should this ruling come down in Fischer’s favor, and in turn in Trump’s and the many January 6 defendants whose convictions will be voided as a result, how much of our money will have been wasted this time to satisfy the vindictive revenge of Biden and his monumentally bitter Attorney General?

Moreover, and this pains me to say as a person who spent most of his life in the law, what does this say about the almost unimaginable incompetence and intellectual laziness of our once-respected Department of Justice? Is it a stretch to wonder whether the “brilliant” minds of our public attorneys were so consumed by TDS that they simply forgot to do the necessary research on this statute before charging these defendants?

Only time will tell. The question is how much time does our beloved Republic really have with madness like this in leadership positions? An entire year gives these amoral savages a dangerous amount of time to bring their campaign of punishment to frightening levels of uncivilized lawfare.

II. Jack Smith’s Appointment By Garland May Have Been Unconstitutional Per A Brief Filed By Former Attorney General Edwin Meese

Lest it be thought I was trying a little too hard to be “too cute by half”, at my age ludicrous by definition, I should note that the Taylor Swift analogy in my title was not my own but appeared, as we shall see later, in the conclusion of an Amicus Brief filed in the Supreme Court on December 21, 2023. I will also note that if you get all your news from the mainstream media you would have never known of this momentous filing which, if I may be excused for using a much-tattered descriptor, has the potential to be a real “bombshell” as opposed to those dozens of similar “explosions” we read about every day.

Trigger warning: to fully understand the power of this argument it is necessary to take another trip through those dreaded weeds, but I hope, again, what this argument could mean to the victims of what is arguably the most flagrant miscarriage of justice in American history will make the journey worth it.

The basis for this argument initially surfaced when then-Deputy Attorney General Rod Rosenstein appointed Robert Mueller as a “Special Counsel” giving rise to one of the sleaziest and most disgraceful periods in the law: Russiagate. However, at that time it was only advanced in legal publications but never as a formal filing such as the one now on record at the Supreme Court, with a similar filing recently in the Federal Court of Appeal for the District of Columbia. It is also interesting, to say the least, to note that largely left-leaning Court has instructed the attorneys in that case (the Trump immunity case) to be prepared to argue that specific point in Oral Arguments on January 9, 2024.

The heart of the argument is the “Appointment Clause” of the Constitution, Article II, Section 2, Clause 2, which provides as follows as to the powers of the President”

Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Noting that Garland appointed Smith under the provisions of a statute and that the statute does concern the appointment of “Special Attorneys”, the Meese brief, according to Shipley’s analysis, sets out the argument as follows:

The Meese brief points out that while this authority to appoint “special counsels” may exist in a statute passed by Congress, that authority is nonetheless limited by provisions of the Constitution as to the individuals eligible for such appointment given the nature of the powers being conferred.  Because Jack Smith was a private citizen when appointed, never having been nominated by a President or confirmed by a vote of the Senate, he was not within the scope of individuals who could be authorized by AG Garland to exercise prosecutorial authority equivalent to United States Attorneys.  Any action by purporting to create such a position – or “office” -- and vest it with the same authority as United States Attorneys in unconstitutional because it was not “created by law.”

***

The Appointments Clause provides for the appointment of officers “which shall be established by Law.” “Officers” are – obviously – appointed to “Offices,” and the “Office of the President” is the only office created by the Constitution.  Congress creates all other “offices” of the Executive branch by statute, hence the “established by law” language.

The power to create these offices and vest them with lawful authority is part of the “Necessary and Proper” Clause to carry into execution the powers conferred on the Executive.  Established by “law” has been interpreted to mean not by “regulation” or “executive order,” as only Congress passes laws.  Congress has the exclusive constitutional authority to create federal “offices.”  The Constitution does not give the President nor the heads of Executive Branch Departments the power to create “offices” to which individuals may be appointed.  

Shipley’s post - Is Jack Smith An Illegitimate Prosecutor? Has Every Action Taken By Him Been Unlawful?- closes with these words which carry as much genuine, not illulsory, hope as I have seen in quite a long time in these dark days of the Biden-Garland-Wray-Smith police state:

If the Meese brief’s argument is correct, then all the actions taken by Smith have been without lawful authority under federal law – beginning with the use of the grand jury in Washington D.C. to build the cases he has brought against former President Trump.  The outcome would almost certainly mean that the cases would be dismissed.

In our family, probably like yours, we have long used the old phrase “when something looks too good to be true it almost always is.” We can only hope that this may turn out to be one of those rare exceptions to that time-tested statement of wisdom.

Do I consider this a serious and very possibly successful argument which should dictate the end of Smith’s TDS-driven lawfare against the former President, designed to deny 70-75 + Million American citizens the right to choose their candidate for President of the United States? Absolutely.

Am I realistic enough to recognize the real possibility that only a few Justices would agree and vote to void every single act of Smith, considering the difficulty in predicting what the Chief Justice and one or two of the “Conservative” Justices would do in the final analysis? Absolutely.

However, as I started with The Bard it may be fitting to return to Hamlet to say of the hope that this argument will be successful:

‘tis a consummation

Devoutly to be wished.

God Bless America!