THREAD: 1512(c)(2): So SCOTUS has agreed to take up the Fischer case and everyone seems a bit worried that this could nullify two of the four counts against Trump in the DC indictment of SCOTUS finds in favor of Fischer. A little background: Fischer is a 1/6 rioter... 1/
Who filed a motion to dismiss because he argues that he didn't obstruct an official proceeding (the 1/6 certification) by destroying or altering a document or record - despite 15 other judges ruling that's not what the law says, and the appeals court finding for DoJ. 2/
Pretty much EVERYONE except Fischer and Trump seem to think that you have to destroy or alter records to violate 1512c. But folks are worried that SCOTUS could gut 1512c by ruling in favor of Fischer and finding that you have to screw with documents. 3/
I thought surely Jack Smith thought of this when he crafted his indictment, so I went back and read Trump's motion to dismiss on statutory grounds (which Chutkan has not yet ruled on), and Jack Smith's response to Trump's citation of Fischer. 4/
SURE ENOUGH, here's what Jack Smith has to say about it: “The indictment would likewise suffice under a narrower conception of Section 1512(c)(2)’s actus reus element—which Fischer rejected—that focused on tampering with records." 5/
"The certification proceeding that the defendant and his co-conspirators are alleged to have obstructed is required under the Electoral Count Act, which specifies procedures that rely on specific core records: certificates of votes from each State." 6/
"Preventing the Members of Congress from validating the state certificates constitutes evidence-focused obstruction and thus would violate Section 1512(c)(2) even on a narrower view of the statute’s scope." 7/
"That is particularly true where, as here, the criminal conduct included falsifying electoral certificates and transmitting them to Congress."
So EVEN IF the supremes agree with the one out of 15 judges on his interpretation of 1512(c)(2), Jack Smith has it covered. 8/
You can read Jack Smith's opposition regarding 1512 in this November 6th filing on pages 20 and 21 here: END/ s3.documentcloud.org/documents/2412…
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