Editor’s Note: The following commentary was first published on the author’s blog: Res Ipsa Loquitur – The thing itself speaks.
The release 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.
Much of the report was vintage Smith in dismissing countervailing precedent and insisting that he could “obtain and sustain a conviction at trial.” 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.
Smith relied 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. Smith tended to push the law to the breaking point to bag defendants. That was the case when his conviction of former Virginia Gov. Robert F. McDonnell was unanimously reversed as overextending another law.
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 report made it abundantly clear that Smith was not going to let the Supreme Court’s decision in Fischer v. United States dictate his approach.
The Supreme Court’s decision rejected the use of obstruction of legal proceedings against January 6th defendants, but Smith seemed more interested in shoe-horning the evidence into another category. Jackson supported the majority in finding that the obstruction provision, Section 1512(c), was enacted after the Enron case to address the destruction of documents and records.
Smith revealed that he was going to proceed on the theory of a single justice with the help of a favorable jury and a motivated judge. It seems that little has changed with Smith since his unanimous reversal in the McDonnell case, which seems much of the reason that he was appointed.
In conclusion, the report revealed that Smith is still willing to overextend constitutional and statutory authority to secure a conviction, regardless of the evidence or precedent. This approach has not served him well in the past, and it is doubtful that it will fare any better in the future.