Why the Absurd Alito Flag Controversy is a Good Sign

by Julie Kelly

Take heart, dear reader.

While it is excruciating to endure the latest political crisis manufactured by Democrats and the leftwing news media, I advise a different approach.

Smile. Laugh. Cackle like Kamala.

Why? The absurd flag-flying scandal, undoubtedly annoying to Justice Samuel Alito and his family, is all the proof we need that decisions pending at the U.S. Supreme Court will not go the Democrats’ way.

And it is killing them to the point of debasement and emotional immolation.

Yay!

Two critical questions before the court will determine whether Donald Trump faces trial in Washington, D.C. this year on Special Counsel Jack Smith’s indictment related to the events of January 6. In April, the court heard arguments as to whether a former president is immune from criminal prosecution for his conduct in office and whether the Department of Justice unlawfully applied 18 U.S. Code § 1512(c)(2), obstruction of an official proceeding, against roughly 350 January 6 defendants.

That count also represents half of Smith’s indictment in Washington.

During the separate proceedings, a majority of justices appeared poised to deliver a defeat to the DOJ on both questions. Alito specifically cited January 6 in one exchange with U.S. Solicitor General Elizabeth Prelogar, who represented the DOJ in Fischer v USA, the 1512(c)(2) case, on April 16.

In an attempt to clarify which sort of political protests would be covered under the obstruction statute and which would not, Alito proposed a hypothetical to Prelogar:

“So we’ve had a number of protests in the courtroom. Let’s say that today, while you’re arguing…five people get up, one after the other, and they shout either ‘Keep the January 6th insurrectionists in jail’ or ‘Free the January 6th patriots.’ And as a result of this, our police officers have to remove them forcibly from the courtroom and let’s say we have to — it delays the proceeding for five minutes. So would that be a violation of 1512(c)(2)?”

When Prelogar answered no, Alito pressed further, noting that the statute’s language sweeps in attempts to “impede” an official proceeding, not just obstruct. He also pointed to the government’s double-standard in applying the law. ‘[For] all the protests that have occurred in this Court, the Justice Department has not charged any serious offenses, and I don’t think any one of those protestors has been sentenced to even one day in prison,” Alito told her.

Chalk up one against the DOJ.

Permanent Reputational Damage to the DOJ and D.C. Federal Court

It is impossible to overstate how devastating a reversal of the DOJ’s use of 1512(c)(2) will be to the unprecedented and ongoing criminal investigation into the events of January 6. If the high court decides the law does not apply to congressional business or it requires the destruction of a record or document—recall this law was passed in the aftermath of the Enron/Arthur Anderson accounting scandal—the heart of the J6 prosecution will be ripped from the heartless body of the DOJ, specifically U.S. Attorney for the District of Columbia Matthew Graves’ office.

The most common felony charge in J6 cases will be eliminated with more than 100 convictions for 1512(c)(2) vacated. The docket of the D.C. federal court will be flooded with motions to dismiss the count, release incarcerated individuals from prison, and resentence those with additional charges.

A reversal will bring sharper attention to the reckless, retaliatory, and destructive prosecution of J6ers at a time when Trump and some Republicans continue to describe J6ers as “political prisoners”—and at the same time Joe Biden and the Democrats continue to use the January 6 “insurrection” as a key campaign issue.

Even conservative media outlets that have ignored the abuses by the DOJ related to the prosecution of more than 1,400 J6ers and counting will have to cover the ruling. And Jack Smith will be forced to figure out how to keep the two 1512 charges against Trump in the J6 indictment.

So, Democrats and the media are desperate to portray both Alito and Clarence Thomas as insurrection sympathizers in an effort to designate their votes, particularly in a close opinion, illegitimate. “Well without the support of insurrectionists Alito and Thomas, the 1512(c)(2) count would have held!” Laurence Tribe will wail.

Boo hoo.

Their crusade to effectively cancel the votes of Alito and Thomas in the public eye includes demands by Senate Democrats to meet with Chief Justice John Roberts, an invitation Roberts presumably will decline. (He, too, appeared amenable to a reversal of 1512(c)(2))

Alito Skeptical of DOJ Arguments on Immunity

Things didn’t go much better for the government during arguments on April 25 over presidential immunity, which originated out of Smith’s J6 indictment. Alito specifically took aim at U.S. Circuit Court Judge Florence Pan’s gotcha hypothetical about Seal Team Six during appellate hearing. (I explained here.)

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