OPINION: This article may contain commentary which reflects the author's opinion.
Former federal prosecutor Andy McCarthy said during a TV appearance on Monday that many people “miss” the case that would “blow up” special counsel Jack Smith’s prosecutions of former President Donald Trump.
Smith indicted Trump in August on four counts related to his actions following the 2020 presidential election.
In recent weeks, the U.S. Supreme Court agreed to hear a case called Fischer v. United States, which centers on an obstruction statute that Smith used to charge Trump, scheduling oral arguments for April, the Daily Caller reported.
“The case to keep your eye on is the obstruction case,” McCarthy told “America’s Newsroom” co-host Bill Hemmer. “We miss it because Trump is not a party to that case. They are looking at the same statute that is key to Smith’s prosecution of Trump in Washington, and if they — as I expect they may, if they — if they say the Justice Department has not been correctly applying that statute, that’s going to have a catastrophic impact for Smith on his indictment.”
The U.S. Department of Justice has brought charges against numerous individuals involved in the January 6, 2021 riot at the Capitol building for violating 18 USC Section 1512(c)(2), obstructing or impeding an official proceeding. This offense carries a potential sentence of up to 20 years in prison.
“The D.C. Circuit’s expansion of Section 1512(c)(2) beyond evidence impairment to protests at the seat of government thus conflicts with the interpretations of other courts of appeal limiting the scope of the same statute,” attorneys for Joseph Fischer, who was charged in connection with the Capitol riot, wrote in a brief submitted to the Supreme Court.
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Other legal experts have agreed with McCarthy.
Jeffrey Rosen, a law professor at George Washington University who discussed the case on CNN last month, also linked it to one being pursued by the former president’s legal team regarding presidential immunity.
He said that if the nation’s highest court rules in favor of Trump, Smith’s case will be infinitely more difficult to prosecute and win.
“There’s a centrally important case in the Supreme Court where the Court’s going to decide whether the core of Jack Smith’s charges involving obstruction of justice are consistent with Constitution and the law or not,” he told CNN.
He added: “If they throw those out, that’s going to be a stake in the heart of the Jack Smith case. It won’t prevent it, but it’ll make it much harder to pursue.”
In addition, Rosen talked about how the timing of Smith’s cases against Trump could also be disrupted in terms of timing.
“The Jack Smith timing depends on, first, what the Supreme Court does—is it going to rehear immunity or just uphold the D.C. circuit?” Rosen explained.
“But then next month there’s a centrally important case in the Supreme Court where the court’s going to decide whether the core of Jack Smith’s charges involving obstruction of justice are consistent with the Constitution and the law or not,” the report added.
If SCOTUS rules on behalf of the defendants, he argued that it will also call into question the use of the law to prosecute those charged about the Jan. 6, 2021, riot at the U.S. Capitol Building.
Fritz Ulrich, an attorney representing Fischer, told Newsweek that he will “argue for a narrow construction of Section 1512(c)(2) consistent with its language and Congress’ expressed purpose in enacting it.”
“As far as the effect on the other January 6 cases that have a Section 1512(c)(2) count, nothing will happen at the argument that would affect them,” Ulrich said. “But we may be able to discern how some of the justices view the statutory language at issue.”
