The indictment of former President Donald Trump by special counsel Jack Smith—with the full approval of Attorney General Merrick Garland—is an attack on the American political system and fundamental rights protected by the First Amendment to freely discuss, debate, and contest serious election and political issues.
It represents the ultimate weaponization of the Justice Department, a transformation started by President Barack Obama’s attorney general, Eric Holder, and completed by Garland, to take out a viable political opponent of Garland’s boss and political patron, President Joe Biden. Nothing more, nothing less.
Trump is charged with four felony counts under three federal statutes—18 U.S.C. §§ 371, 1512, and 241—for supposedly conspiring to defraud the U.S., obstruct an official proceeding, and suppress the right of Americans to vote.
Why? Because he “spread lies” questioning the outcome of the 2020 election by claiming “that he had actually won,” according to the indictment, thus creating a “national atmosphere of mistrust and anger” and “erod[ing] public faith in the administration of the election.”
That’s the kind of language you would normally see in an editorial from The New York Times, not in a criminal indictment. It is an opinion, not an actual rendition of facts.
There are millions of Americans who continue to have similar doubts, just like Trump, about the 2020 election, and according to Smith’s dubious legal theories, their continued questioning of that outcome makes them liable for criminal indictment.
If that sounds far-fetched, it shouldn’t.
Claims True or Not? It’s Irrelevant
I wouldn’t put any type of abusive misuse of its law enforcement power beyond this Justice Department or today’s FBI. Whether those claims about the validity of the 2020 election are true or not is irrelevant to the issues at stake in this criminal case.
The federal government—in this case Smith, Garland, and the Justice Department—are not the arbiters of “truth” in America. They have no right and no authority to criminally charge anyone for doubting the outcome of any election, no matter whether that claim is unreasonable or not.
That would include contemporary folks such as Hillary Clinton and Stacey Abrams, as well as Andrew Jackson, who claimed the 1824 election had been stolen from him. Good thing Smith wasn’t around 200 years ago.
Note, too, that Trump has been indicted by a grand jury in the District of Columbia, of all places. D.C. voters gave Biden 92% of the vote in that election, while Trump got a little over 5%, and any veteran of the Justice Department (which would include me) will tell you that a D.C. grand jury will happily indict any Republican for eating a ham sandwich.
Trump’s ability to get a fair trial in the District before an unbiased jury is nonexistent. That’s also why really serious cases, such as those against terrorists, usually get filed in federal court across the Potomac River in Virginia. That’s because DOJ prosecutors don’t trust D.C. juries or D.C. judges—except if they want to ensure they can convict a Republican, regardless of the facts or the law in the case.
The McDonnell Precedent
And that is Smith in a nutshell, according to former Virginia Gov. Robert McDonnell, who said that Smith is a prosecutor who would “rather win than get it right.”
McDonnell was the target of a prosecution by Smith for supposed fraud and corruption, along with his wife, who was also charged under the same “obstruction of an official proceeding” statute being used against Trump.
The U.S. Supreme Court unanimously threw out the convictions in 2016 after rejecting Smith’s extremely broad reading of the applicable federal statutes, an important point that applies here, too.
Notice what is missing from the indictment; namely, any count charging Trump with sedition or soliciting violence or organizing and inciting the actions that occurred at the Capitol on Jan. 6, 2021—which was the sole objective of the Jan. 6 star chamber congressional committee.
I’m sure that omission was not for lack of trying by Smith, but no doubt he just couldn’t get past Trump’s speech, in which the president specifically emphasized that doubters of the election outcome wanting to “make their voices heard” should do so “peacefully and patriotically.”
That’s just like other speakers at numerous Washington marches and protests that have occurred on many, many occasions.
Crucial Legal Requirement: Intent
In order to try to justify his claims against Trump, Smith spends almost all of the 45-page indictment summarizing the actions that Trump and his lawyers, including six unindicted “coconspirators,” took in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin to contest the election outcome. Smith then claims those actions amounted to criminal fraud because Trump “knew” the claims being made were “false.”
Keep in mind that crucial legal requirement.
In any fraud or perjury case, it’s not enough for the government to show that someone made a false statement or that he should have known that the statement he made was false.
The government has to prove that the defendant knew that the statement was not only false at the time he made it, but that he made it with the intent to deceive someone.
You can say a lot of things about Trump, and for most people, there is no in-between with Trump. Folks either hate him or love him. But again, that’s irrelevant to what actually may or may not have happened in the 2020 election.
Is there anyone out there (other than Smith and a politically biased D.C. grand jury) who really thinks that—to this day—Trump doesn’t truly believe he won the 2020 election?
And if engaging in bare-knuckled politics, making baseless arguments, or lying about an election or any other political matter was a criminal violation of federal law, federal prisons would be overflowing with politicians.
18 State Attorneys General
But here’s another relevant fact: These claims were taken so seriously that Texas filed a motion with the U.S. Supreme Court asking for permission to file a complaint also contesting the election outcomes in Pennsylvania, Georgia, Michigan, and Wisconsin.
Seventeen states, led by Missouri, filed a joint amicus brief supporting the Texas complaint because of their serious concerns about the irregularities that occurred in the election.
It’s true that the Supreme Court refused to allow the case to go forward, but is Smith contending that the attorneys general of 18 states were engaging in a conspiracy to try to defraud the U.S. and the federal government by raising similar concerns over the 2020 election? Under the radical legal theories being advanced in this indictment, that is exactly what Smith is doing.
Finally, relevant to this charge of defrauding the U.S., as Justice Clarence Thomas wrote for a unanimous Supreme Court in May in Ciminelli v. U.S., “federal fraud statutes criminalize only schemes to deprive people of traditional property rights,” i.e., money or property. As the court said, federal “fraud statutes do not vest a general power in ‘the Federal government … to enforce (its view of) integrity in broad swaths of state and local policymaking.’”
In his claim that Trump defrauded the U.S. by trying to contest a valid election, Smith is thumbing his nose at the Supreme Court, since there is no claim in the indictment that Trump has defrauded anyone of money or property.
Precondition of Financial Crime Lacking
In other words, there is no financial crime here, which the Supreme Court says is a necessary precondition of any claim under any federal fraud statute. Smith is directly violating valid Supreme Court precedent in targeting the potential political opponent of his boss.
What could be more reckless or irresponsible than that? Or more unethical?
By the way, most of the unnamed co-conspirators seem to be lawyers who worked for Trump. Yet, Smith is creating a criminal conspiracy over a client relying on the legal advice of his lawyers, some of whom have had very distinguished careers. That threatens the entire legal profession for acting zealously to represent their clients and to provide their professional judgments.
The way Smith used the grand jury process to breach the confidentiality of attorney-client communications, as well as override executive privilege to obtain communications between Trump and his advisers, including the vice president, is also shocking.
All of this is an abusive overreach that threatens the way our legal system works, as well as the ability of any president to rely on, and even obtain, advice and counsel inside the executive branch.
What Smith has done is extremely dangerous to our constitutional order and the functioning of our justice system.
“Illegitimate Electors”: The 2000 Precedent
Finally, two other charges are just as meritless.
Smith claims that by trying to persuade state legislators and other officials to send the votes of Trump electors to Congress for the official count and certification of the votes of particular states, he was engaging in a fraudulent conspiracy to obstruct an official proceeding. Smith calls these “illegitimate electors” and “fraudulent slates of electors.”
But the idea of alternative electors isn’t new and has happened in prior presidential elections without anyone claiming they violated federal criminal law, including the 1876 contest between Samuel Tilden, a Democrat, and Rutherford B. Hayes, a Republican, when Oregon, South Carolina, Florida, and Louisiana sent two conflicting slates of electoral votes to Congress.
It happened again in 1960 when the alternative votes of John Kennedy electors from Hawaii were counted instead of the votes of the slate of Richard Nixon electors that was originally certified by the governor.
In 2000, then-Rep. Patsy Mink, D-Hawaii, suggested that then-Vice President Al Gore designate a slate of contingent electors for Florida, but Gore finally conceded before that could occur. Mink was never charged with trying to “obstruct” an official proceeding, and for good reason. What she did—just like what Trump was doing—wasn’t a criminal violation of the law.
Trump also has a very strong argument that any actions he took as president after November and before Jan. 6, including with his own vice president, Justice Department officials, and state and local legislators and officials, were within the ambit of official actions as president.
Whether those actions to push his subordinates to question the election outcome in several states or the process of the electoral vote count were misguided or not is irrelevant and not subject to Monday morning quarterbacking by Smith or anyone else.
The president has the constitutional authority to supervise the executive branch and thus is protected by presidential immunity. Smith has no jurisdiction to question or criminalize those actions that Trump took while president.
Moreover, Trump’s efforts to persuade state legislators and state officials to take steps to reconsider the election results and remedy any defects fall squarely within the right every American citizen has under the First Amendment—whether president or not—to “petition the Government for a redress of grievances.”
Criminalizing First Amendment
Under Smith’s bizarre theory of the law, you can apparently be charged criminally for exercising that right under the First Amendment.
Finally, what should be a significant constitutional problem for Smith is the potential lack of federal jurisdiction over the selection of electors.
Section 1 of Article II of the Constitution says that the power to decide how electors are chosen for a presidential election is entirely with the authority of the state legislatures. The only authority the federal government has is that Congress gets to determine the dates on which electors are chosen and when they present their votes. Thus, Congress determines the national Election Day for president and when those electors’ votes are presented to Congress.
Under the Bush v. Gore decision of 2000, state legislatures are subject to the due process and equal protection clauses of the Constitution in managing the voting and electoral process.
But in the 2020 election or in any other presidential election, it is state legislatures that have the constitutional authority—not Jack Smith and not the Justice Department—to determine which slate of electors should be certified and sent to Congress.
That gives them the power to decide if there were errors, defects, or other problems in an election that led to the wrong slate of electors being elected.
That is entirely up to the states to decide, as long they do so within the requirement of due process and equal protection. Trump trying to persuade state legislators that the wrong slate of electoral votes was being certified or organizing a potential alternative slate of electors to be used if the legislature determined he was correct is not a violation of any federal law or obstruction of any official proceeding.
The final charge in the indictment over a supposed violation of 18 U.S.C. §241 is without doubt the most outrageous charge in the entire indictment.
Ku Klux Klan Act? Seriously?
I’m very familiar with this criminal civil rights statute as a former lawyer in the Civil Rights Division of the Justice Department. Also known as the Ku Klux Klan Act, this law was passed by Congress in 1870 to stop the terrible violence, threats, and intimidation being committed against black Americans and their white allies in the South.
The act prohibits anyone from conspiring to “injure, oppress, threaten, or intimidate” any person from “the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”
Any person with an ounce of common sense reading that is possibly wondering how a statute meant to stop the predations of the KKK could possibly apply to Trump contesting the outcome of the 2020 election. That just means you have more common sense than either Smith or the minions of his pet grand jury.
According to the indictment, Trump’s actions were a conspiracy “against the right to vote and to have one’s vote counted” in violation of the Ku Klux Klan Act since the right to vote and have one’s vote counted is a right protected by the laws of the U.S. But that is based on the absurd claim by Smith that merely questioning the conduct of an election or the propriety of election procedures that may have invalidly changed the outcome of an election is an attempt to disenfranchise all of the voters in that election.
In 1974, in Anderson v. U.S., the Supreme Court said that proving a conspiracy under § 241 requires the government to “show that the offender acted with a specific intent to interfere with the federal rights in question.” Moreover, “charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning … a dragnet to draw in all substantive crimes.”
But Trump thought the election had been stolen and that numerous incidents had occurred that allowed illegal votes to be cast and legal votes to be discounted. Under the purview of this statute, his actions can be categorized as acting to ensure that the valid ballots of all of the legitimate voters in the election were counted and those voters were not disenfranchised by illegal votes and illegal actions by state and local election officials.
Multiple Unsupported Inferences
There is no evidence of the specific intent called for by the statute and the Supreme Court’s application of the law to show that Trump was trying to keep legitimate voters from casting their ballot or having their votes counted, as opposed to contesting the outcome of an election he thought was stolen.
In fact, Smith is doing exactly what the Supreme Court warned in Anderson the government cannot do, piling unsupported inference upon inference to fashion a dragnet to draw in Trump. Mere advocacy of efforts to root out election fraud and secure the integrity of an election cannot support a claim of voter suppression under this law.
Should Gore have been charged under the Ku Klux Klan Act in 2000 when he mounted numerous public and legal challenges to the outcome of the presidential election? Of course not. And neither should Trump.
The use against Trump of this particular federal law that was intended to go after one of the most notorious, dangerous, and contemptible organizations in the entire history of our country is particularly offensive.
Smith and every DOJ lawyer involved in this case should be hanging their heads in shame.
Winston Churchill once defined the Soviet Union as “a riddle, wrapped in a mystery, inside an enigma.” This trumped-up case (no pun intended) against the former president can be defined as an “outrage, wrapped in law, inside a political vendetta.”
At the very same time, the Justice Department is giving Hunter Biden a Monopoly-style “Get Out Of Jail Free” card for evading millions of dollars in taxes and other serious federal felony violations, and it’s refusing to investigate the serious corruption and bribery allegations against Biden.
And now, Smith wants a gag order imposed on Trump so he can’t defend himself while the mainstream and social media have free rein to savage him.
All of this is more evidence of just how far the Justice Department has fallen and how far to one side of the political aisle it’s willing to go to consolidate the hold on power of Biden and his party.
The two impeachments of Trump weren’t successful, so the new route is through the criminal courts. Expect a show trial worthy of the kind that occurred in Moscow in the 1930s with a similar, preordained outcome, given the utter predictability of a D.C. jury and the liberal judge, appointed by Obama, assigned to the case.
Just as with McDonnell, Trump’s only relief may come on appeal and in the negative reaction of the American public to the current administration’s latest abuse of power.
This piece originally appeared in The Daily Signal
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