A Stretch of Obstuction: A Breakdown of Jack Smith's Federal Election Prosecution
Part 5 of The Lawfare Files
We have now reached the penultimate case in The Lawfare Files, leading into both today’s topic and next week’s series finale covering the final two trials Trump faced during his 2024 election campaign: the Jack Smith federal indictments. If you’ve been following this series closely, you’ve likely noticed a consistent pattern across each case. Every charge brought against President Trump—civil or criminal—has lacked clear-cut proof of guilt. It’s as if prosecutors and judges are following a strategy: the broader the statute, the harder it becomes for Trump to effectively defend his innocence. Jack Smith’s approach was no exception.
On November 18, 2022, just three days after Donald Trump announced his candidacy for the 2024 presidential election, Attorney General Merrick Garland appointed Jack Smith as Special Counsel to investigate alleged crimes Trump may have committed. This resulted in two federal indictments: the first, issued on June 8, 2023 (which we’ll discuss next Friday), and the second, issued on August 1, 2023—the focus of today’s report. That latter indictment came from a grand jury in the U.S. District Court for the District of Columbia, prosecuting Trump for actions stemming from the aftermath of the 2020 election through the events of January 6, 2021.
Before diving deeper into the legal details, I want to briefly offer personal commentary: I do condemn the riot at the Capitol Building. That said, I believe it was greatly exaggerated, especially in light of facts that have emerged—some of which I’ve written about earlier this year. I also believe Trump should not have held the Save America rally on January 6. As for my views on the 2020 election itself, I’ll explore those in a separate article later this year.
Returning to the case at hand: the idea that Donald Trump broke the law through his post-election challenges or his role on January 6 is built on a mischaracterization of what actually happened—and that is precisely what I intend to dismantle in this article.
Clarifying what Trump was Charged With
Similarly to what I wrote in the Hush Money Trial report, there is a lot of confusion as to what Trump was charged with relating to the Jack Smith indictment. Despite January 6th overlap from his Second Impeachment trial, Donald Trump was NOT indicted on grounds of “Insurrection” or “Seditious Conspiracy.” Why not? Simply because no such evidence exists! That’s why Trump was acquitted in the Senate. So, what exactly did Jack Smith charge him with? And, for what reasons?
Jack Smith charged Donald Trump on four counts:
18 U.S.C. § 371 - Conspiracy to defraud the United States
Smith’s reason is that Trump knowingly was engaging in a conspiracy to undermine the results of the 2020 election, using examples such as Trump’s pressure on state officials (e.g., Georgia’s Secretary of State Brad Raffensperger to “find 11,780 votes”).
18 U.S.C. §§ 1512(k) - Conspiracy to Obstruct an Official Proceeding
Smith argued that Trump conspired to obstruct the January 6, 2021, congressional session to certify the electoral vote, a critical step in the peaceful transfer of power. The indictment highlighted Trump’s repeated calls for Pence to “do the right thing” by rejecting electoral votes, despite being told this was illegal, and his January 6 speech urging supporters to “fight like hell” and march to the Capitol.
18 U.S.C. §§ 1512(c)(2) - Obstruction of and Attempt to Obstruct an Official Proceeding
This charge was based on Trump’s direct actions to disrupt the January 6 certification, both through his pressure campaign on Pence and his role in mobilizing supporters to storm the Capitol. The prosecution emphasized the fake elector scheme, where fraudulent certificates were sent to Congress to sow confusion, as a direct attempt to obstruct the proceeding.
18 U.S.C. § 241 - Conspiracy against rights
Smith alleged that Trump conspired to violate the civil rights of millions of Americans by attempting to deprive them of their right to have their votes counted accurately in the 2020 election (i.e., the fake electors). The charge focused on Trump’s efforts to allegedly disenfranchise voters in battleground states through fraudulent means, such as fake electors and baseless lawsuits, which aimed to nullify legitimate election results.
When reading through the indictment, it is clear that Jack Smith’s counts had no concrete basis showing irrefutable proof against Trump. Virtually all of it was based on either Smith’s assumptions, or his subjective legal interpretation. Now that we have established the charges, we can now debunk them.
The Fake Electors Myth
The claim that Trump was attempting to overturn the election using a slate of “fake electors” is the most absurd claim in this whole indictment against Trump. It is essentially insinuating that Trump and his team were trying to “slip in and switch” certificates of ascertainment that went to Biden, to favor Trump so he can score a false victory in the Electoral College. None of that is what happened, let alone there being any evidence that was the intention. To understand whatTrump’s aim was with electoral vote count we need to look back at historical precedent. A precedent that some Left-leaning legal analysts, like Van Jones and Lawrence Lessig, openly endorsed.
First of all, there are no such things as “fake electors,” but there are such concepts of “alternative electors” and “competing slate of electors.” The 1876 presidential election between Samuel Tilden (Democrat) and Rutherford B. Hayes (Republican) involved disputed electoral votes in Florida, Louisiana, and South Carolina, where competing slates of electors were submitted due to genuine uncertainty over vote counts and allegations of fraud and voter suppression.
An even more detailed case study is with the 1960 election, Hawaii’s close race between Kennedy and Nixon (a margin of ~140 votes) led to a recount that was ongoing when electors met on December 19, 1960. Both Republican and Democratic electors cast votes, with the Republican slate initially certified by the governor. After a court-ordered recount confirmed Kennedy’s win, the governor certified the Democratic slate, which Congress accepted on January 6, 1961.
In 2000, the Bush-Gore election in Florida was contested due to a close margin (~537 votes) and legal disputes over recounts. Representative Patsy Mink (D-HI) suggested the Gore campaign submit an alternate slate of electors, citing the 1960 Hawaii case, but this did not occur, as the Supreme Court’s Bush v. Gore decision halted the recount, and Bush’s electors were certified. So, while alternate slates were never in effect, Democrats did plan on submitting a slate of alternate electors in 2000 if their legal challenges had been successful.
The Flaw of Prosecuting on 18 U.S.C. § 1512
Half of Trump’s indictment revolves around the obstruction of an official proceeding. This law was officially established by the Sarbanes–Oxley Act of 2002, a federal statute that mandates certain practices in financial record keeping and reporting for corporations. The specific charge of 1512(c)(2) was considered significant not only because Trump was charged on it, but so were hundreds of other J6 defendants. According to the DOJ data, of the 1,500+ defendants that have been prosecuted regarding their involvement with January 6, approximately 330 of them were charged under 1512(c)(2). For those 330, 1512(c)(2) represents the only felony in 55 J6 cases; other counts commonly include nonviolent misdemeanors such as parading in the Capitol or disorderly conduct. This specific charge was also significant because, up until the January 6 charges, prosecutors had never applied the statute in cases that did not involve evidence tampering. Which also means this precedent had never been challenged in court until last year.
The Fischer v. United States Ruling
Three January 6th defendants, named Joseph W. Fischer, Edward Lang, and Garret Miller, entered the Capitol Building in Washington, D.C., and were later prosecuted under the DC District Court. Among the charges they faced was 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations. This was the first time in American history that defendants were ever charged under that particular law, in this context. The District Court Judge Carl J. Nichols overseeing the trials of these Defendants dismissed the 1512(c)(12) charges they were all facing. The DC prosecutors appealed the verdict to the DC Appellate Court Panel, which reversed Judge Nichols’ ruling in a 2–1 vote. Of the three defendants that had their ruling overturned, Joseph W. Fischer appealed the decision to the United States Supreme Court, which agreed to hear his case in December of 2023. It was this Supreme Court case that demanded answers to the question: Does 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, include acts unrelated to investigations and evidence?
Last summer, on June 28, 2024, the Supreme Court ruled 6–3 that the charge only applied when the defendant "impaired the availability or integrity" (attempted or successfully) of a physical document or object used in an official proceeding. Chief Justice John Roberts, who wrote the Opinion of the Court, ruled that §1512(c)(2), which includes "otherwise obstructed" language, must be read in context with the more specific actions in §1512(c)(1), which focuses on tampering with documents or evidence. Therefore, §1512(c)(2) does not broadly cover all obstructive conduct but is limited to actions related to impairing the availability or integrity of evidence or objects in an official proceeding. This narrower reading prevents the statute from overreaching and criminalizing conduct not directly tied to evidence tampering.
The *Fischer v. United States* (2024) ruling significantly bolstered Donald Trump’s legal defense in the Special Counsel Jack Smith’s election interference case by narrowing the scope of the obstruction charge under 18 U.S.C. §1512(c)(2). Previously, the DOJ applied this statute broadly to charge over 330 January 6 defendants, including Trump, for obstructing Congress’s 2020 election certification. The Fischer decision limited §1512(c)(2) to actions impairing records or documents, requiring prosecutors to prove Trump’s specific intent to target such materials (e.g., electoral ballots) rather than generally disrupting the proceeding. This higher evidentiary bar complicated the prosecution’s case, as allegations of Trump inciting the Capitol riot or pressuring Vice President Pence may not clearly align with document-focused obstruction, increasing the likelihood of charge dismissals or the need to reframe the case.
With the now correctly disputed claim of fake electors and corrected interpretation of 1512(c)(2), there was not much left for Jack Smith to work with. The remaining substance Smith had left in his arguments on what to charge Trump with was based on Trump’s own words between the dates of November 3, 2020 and January 6, 2021. This put Trump in a peculiar situation because his efforts to expose the supposed fraud that rigged the 2020 election was in the capacity as both an election candidate as well as being the sitting President of the United States. Legal defenders of Trump have argued that part of his own sworn office to protect the United States from threats foreign and domestic would have included looking into possible fraud. Given the level of concerns of distrust in that election’s electoral process, one could argue that Trump—within his capacities as President—had a duty to make sure there was a complete and total investigation into the electoral process. Which now begs the question—is that even something Trump can be charged with if he was acting upon his Presidential duties?
An Appeal to Immunity
Main Article: The Constitutional Case for Presidential Immunity
Due to the fact that Jack Smith indicted Trump on actions specifically while he served in office, this served as the perfect basis for Trump’s team to request the case be dismissed on grounds of legal immunity. Trump’s defense argued that President’s enjoy immunity from prosecutions for actions while in office. Judge Tanya Chutkan, who was overseeing the prosecution, immediately rejected the motion to dismiss on immunity. Trump would later appeal to an appellate circuit court panel, which also rejected the Immunity Motion. Trump would ultimately appeal one more time to the Supreme Court, which eventually ruled 6-3 that Presidents do enjoy immunity from criminal prosecution, with important nuance: (1) Presidents can enjoy absolute immunity from prosecution related to their official executive powers (i.e., what is recognized under Article II), (2) Presidents can enjoy presumptive immunity from part of his/her official constitutional or statutory duties (i.e., Executive Actions, Addressing the Nation), (3) or they enjoy NO immunity if the action is an unofficial act (i.e., illegal activity, activities outside of Presidential duties).
Following the Supreme Court’s ruling, it finally allowed the trial to resume after months of litigation regarding the immunity debate. The trial for this indictment was originally set for March 4, 2024 (the same day as the Super Tuesday primaries), but Judge Chutkan postponed the trial’s start date indefinitely a month prior while Trump’s team was pending on appeal. Jack Smith originally wanted expedited hearings, but reversed course on that demand on August 23, 2024. Four days later on August 27th, Smith filed a new Superseding Indictment, which kept the same charges with more narrowed allegations. The trial would officially be docketed to resume later that Fall.
Jack Smith’s Final Hail Mary
On October 2, 2024, Judge Tanya Chutkan unsealed a 165-page motion by Special Counsel Jack Smith arguing that Trump’s claims of Presidential Immunity are invalid. Smith argued that Trump's actions on January 6 were private and aimed at overturning the 2020 election as a candidate, not as president. Despite Trump's legal team's objections to the lengthy briefs and concerns about their impact on the upcoming election, Judge Chutkan allowed Smith’s 180-page opening brief to proceed. Trump's lawyers argued that the briefs would unfairly influence the election while Trump was restricted by a gag order from responding. However, Jack Smith created a massive error with his motion: It was riddled with “plot” holes.
The Flaws of the Motion
First, it should be acknowledged that Jack Smith’s motion as a document was intended as a legal argument to justify why Trump should not be shielded by presidential immunity. It was not a presentation of irrefutable or smoking-gun evidence proving Trump committed crimes “beyond a reasonable doubt,” which is the burden of proof required at trial. Second, the type of evidence Smith used to support his claims that Trump’s actions were not covered by Immunity were not sufficient. The “evidence” in question included public statements made by President Trump, Statements by anonymous campaign aides and third parties, and drafts of January 6 speeches. Smith also claimed Trump lied to state officials or attempted to pressure them, but offered no direct communications conclusively showing intent to commit fraud. Crucially, many of these claims depended on interpretations of Trump’s motives, political speech, and conduct that—while aggressive—have often been part of the political arena.
Here are some examples of the Motion’s stretches for “evidence”:
On page 3 of the Motion, which introduces Section I “Factual Proffer”, Jack Smith begins with the following claim:
“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office. With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost…”
It needs to be emphasized that the so-called “crimes” Jack Smith charged Donald Trump with included “Conspiracy to defraud” and “conspiracy against rights.” Some Supreme Court Justices raised issues on the vagueness of those charges in the Immunity case, arguing that any president could be accused of the same. Also, there were two 1512(c)(2) related counts—neither of which will pass the SCOTUS test in Fischer v. United States (2024) no matter how much Jack Smith wants to pretend alternate electoral certificates are “evidence.”
On page 88, Section III titled “None of the Allegations or Evidence Is Protected by Presidential Immunity,” Jack Smith states:
At its core, the defendant’s scheme was a private one; he extensively used private actors and his Campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office.
When you think about the double-standard the prosecution is placing on President Trump this is laughable from both a legal and political standpoint. Especially based on what happened in the Biden White House after the Presidential Debate last summer when mega donors literally mapped out a plan to convince Biden to drop out of the race. AG Garland’s DOJ and Jack Smith are essentially attempting to criminalize political activity by a President while in office, calling interactions with political interests as "private", i.e., not presidential. Smith is walking a very fine line following the Supreme Court ruling, which determined President Trump's communications with VP Pence was "presumptively immune." Smith must salvage that part of the new indictment because there is basically nothing left of the case between SCOTUS immunity and Fischer rulings.
Then once again, on page 90, Footnote 496, Jack Smith brought up the following point:
The Government’s factual proffer also describes a conversation between the defendant and Pence on December 19[, 2020]—the same day that the defendant issued his “will be wild!” Tweet calling supporters to Washington—in which the defendant told Pence that it would be good to have lots of their supporters in town on January 6. See supra pp. 60. At trial, the government intends to use this unofficial portion of the conversation, held between running mates, but not Pence’s response, which includes a reference to the certification proceeding on January 6. GA 440-441
Does it even need to be explained? This is not a crime! Even if it is proven to be a private act!
The True End Goal of the Smith’s Motion
Those examples referenced above are a microcosm of how insubstantive the prosecution’s case is against President Trump. Jack Smith’s motion is based largely on inference, circumstantial claims, and context-specific arguments. Then, when considering the legal implication, Smith’s actions set a dangerous precedent. Smith is inherently asking the court to define Trump’s post-election actions as private conduct, even though they involve matters of public interest, political communication, and constitutional duties. Also, as stated previously, the motion's primary function is to deny Trump the shield of presidential immunity, not to convince a jury. Given the Supreme Court’s rulings in Trump v. United States and Fischer, large parts of Smith’s case are legally vulnerable, and SCOTUS has already cast doubt on the charges he’s pushing.
One could even argue that this is the Special Counsel’s attempt at politicizing the trial through Motion as a form of an “October Surprise.” For those who are unfamiliar with the term, in American politics it is a news event that may influence the outcome of an upcoming November election, especially Presidential elections. Whether it is meant to be intentional, or unintentional, it is very common for these news stories to break in the weeks prior to Election Day in hopes that could hinder an opponent’s electoral victory. Granted, this a matter of speculation, but there are very telling signs this was an “October Surprise” to harm Trump: (1) The motion was released a little over a month before Election Day (November 5, 2024), (2) the length of the document (165 pages) could be used to sway public perception that there is a lot of damning evidence against Trump, (3) the fact that Jack Smith was working as Special Counsel to the Biden-Harris Administration, specifically who Trump was running against for the Presidency.
In the end, whether it was meant to harm Trump intentionally or not doesn’t matter anymore because he won re-election, and is currently serving his second term in office.
Post-Election Aftermath & Closing Thoughts
Dating back as early as the 1970s, the DOJ has held a policy standard to neither indict, nor criminally prosecute a sitting President. Maintaining precedent, Jack Smith filed an unopposed motion to vacate on behalf of the Federal Government. On November 25, 2024 the Government’s official motion to dismiss was filed and was signed off by Judge Chutkan, and the case was officially dismissed without prejudice. This means that the Government can prosecute Trump in the future after he leaves office in 2029, which of course will likely depend on who is in office as President at that time.
In the end, the most consequential outcome of this case wasn’t the trial itself—it was the precedent that was exposed, and perhaps set, in the process. Jack Smith’s attempt to redefine constitutionally protected executive actions and political speech as criminal conspiracies represented a dangerous erosion of the separation of powers. The Supreme Court recognized this risk and reaffirmed the principle that presidents cannot be prosecuted for official acts, especially when such prosecutions are driven by political motives rather than clear, narrowly applied statutes.
Smith’s prosecution ultimately failed not because Trump "got away with it," but because the evidence was insufficient, the statutes were vague or misapplied, and the timing reeked of political maneuvering. The effort to criminalize political strategy—particularly when cloaked in the fog of a contentious election—was rejected both by the courts and, arguably, by the American people. In a final twist of irony, the very case that was meant to derail Trump’s political future only reaffirmed the necessity of legal restraint, impartial justice, and constitutional limits. As Trump now governs in his second term, the collapse of this case will be remembered as a landmark example of prosecutorial overreach cloaked in righteousness.
Now that we have gone over Jack Smith’s election obstruction case, only one more case remains in the analysis of the legal war waged against Donald Trump during his historic comeback campaign—the classified documents case out of Florida. Like the others, it raises profound questions about prosecutorial discretion, presidential authority, and the politicization of justice. However, unlike the charges in D.C., this final case goes to the heart of an unresolved constitutional debate: Who ultimately controls classified information—the presidency or the bureaucracy beneath it? As we close in on the final chapter of The Lawfare Files, we’ll explore how the Espionage Act is being twisted to target a former Commander-in-Chief and why this prosecution may be the most legally challenging of them all for Donald Trump.
Thank you for taking the time to read! If you enjoyed it and wish to support my future work, you can tip me at this link: https://buymeacoffee.com/timelinesandheadlines
Thank you so much!