Several legal analysts recently weighed in on the case.
Two analysts have noted that special counsel Jack Smith might be on shaky legal ground in his federal election-related case against former President Donald Trump.
Neama Rahmani, a former federal prosecutor, said that the Trump charge of corruptly obstructing an official proceeding hasn’t been “extensively litigated” over the past several decades, adding that a ruling could come on whether it is appropriate in the former president’s case.
Multiple defendants who were charged in connection to the Jan. 6, 2021, Capitol breach have “argued that Congress certifying the electoral votes was not an ‘official proceeding’ and courts have universally rejected that argument,” she told Newsweek last week.
“This bigger question is, what satisfies the ‘corruptly’ requirement? Is it any criminal conduct, such as trespassing in the Capitol building or submitting fake electors? Or does the corrupt conduct have to relate to the other subsections of 1512, which prohibit destroying or concealing evidence?” she asked.
She continued: “If the corruption requires consciousness of guilt, then Trump can argue that he genuinely believed the election was stolen. Either way, this issue will likely end up before the United States Supreme Court because it is a novel issue that affects hundreds of criminal defendants, including the former president.”
Lawfare’s Roger Parloff wrote in a recent article that the Department of Justice (DOJ) recently won two “fragile” victories in two cases involving Jan. 6 defendants, and Mr. Smith has “relied on [a] statute” that was used by other prosecutors to charge at least 317 individuals in the Jan. 6 case.
“Smith has relied on that statute and its conspiracy equivalent, 18 U.S.C. § 1512(k), for two of the four counts in his indictment against former President Donald Trump for allegedly conspiring to overthrow the 2020 election,” Mr. Parloff wrote. “Those counts, whose legal sufficiency Trump challenged in a motion to dismiss this week, are the most serious leveled against Trump in that case, carrying a maximum 20-year term of imprisonment.”
