“…Special Prosecutor Jack Smith has just admitted that he and other DOJ and FBI minions manipulated documentary evidence underlying the Mar-a-Lago case against Donald Trump. Everybody from Judge Aileen Cannon on down realizes this is bad. Still, I wonder how many people have noticed that Smith has admitted to doing what the J6 defendants are accused and have been convicted of doing: Violating 18 U.S.C. § 1512(c)(2). The statutory charges against the J6 defendants are a specious abuse of the law but they perfectly fit Smith’s admitted conduct.
One of the main tools in the DOJ arsenal against anyone near the Capitol on January 6, 2021, is § 1512(c)(2), which the DOJ claims means imprisonment for a person who “corruptly…obstructs, influences, or impedes any official proceeding…” That is what the DOJ claims happened when ordinary Americans (a) exercised their rights of free speech and (b) usually inadvertently, entered onto Capitol land after masked agitators had removed “no trespassing” signage and fencing and after the Capitol police had opened the building’s doors. The penalty is fines and/or imprisonment, with the latter potentially as long as 20 years.
The Supreme Court, though, is hearing Fischer v. United States, which sees one of the DOJ’s victims contesting the DOJ’s assertion about § 1512(c)(2)’s applicability to the J6. The argument is that § 1512(c)(2) manifestly applies to a very narrow fact set; namely, corruptly interfering with evidence in an official investigation. Heck, it’s in the statute’s title: “Tampering with a witness, victim, or an informant.” Every section of the statute manifestly deals solely with efforts to destroy or otherwise manipulate evidence in a matter intended to lead to a criminal indictment.
Nevertheless, to imprison ordinary Americans, the DOJ came down hard on subsection (c)(2) of the statute because it contains the phrase “official proceeding.”
(c) Whoever corruptly—
[snip]
(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.
But while the DOJ is focusing everyone’s attention on subsection (2), they’re ignoring subsection (1):
(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…
Does that remind you of anything? It certainly does me.
It reminds me of Smith’s admission to Judge Aileen Cannon about his and his minions’ handling of the documents seized from Mar-a-Lago, documents that then served as the basis for his decision to indict Donald Trump. (Ignore, for now, the fact that Trump, as president of the United States, had plenary power to do as he would with national security information, unhindered either by prior Executive Orders, administrative regulations, or legislation. But back to Smith’s admission:
Prosecutors admitted in a court filing on Friday that “there are some boxes where the order of items within that box is not the same as in the associated scans.” The prosecutors had previously told the court that the documents were “in their original, intact form as seized.”
As any litigator knows, maintaining documents in the order in which they’re seized or produced is enormously important. That’s because order itself provides important information about the chronology of events or a person’s intent or innocence. It’s also of particular concern in this case because these documents were apparently packed by the General Services Administration, which then told Trump to pick them up…”
