For all you Trump haters popping champagne over this dubious indictment, here's EXACTLY why it may collapse
Manhattan District Attorney Alvin Bragg's indictment of Trump for falsely reporting the payment of hush money to adult firm star Stormy Daniels is scandalously inept. The legal contortions Bragg performed to criminalize a possibly immoral, yet perfectly legal, pay off are too convoluted to recount here.
Evidence related to Trump's alleged illegal retention of classified materials at Mar-a-Lago are strong, but the supposed crime itself is rather technical and relatively minor. Hillary Clinton, who stored highly sensitive government documents on her 'home brew' server, never faced federal charges, neither did President Biden, Vice President Pence or Bill Clinton's former National Security Advisor, Sandy Berger.
Why, then, charge the candidate who is in a virtual tie with the incumbent against whom he is running?
The current indictment involves far more serious accusations, but the evidence seems speculative.
In order to establish the underlying charges, the government would have to prove beyond a reasonable doubt that Trump himself actually knew and believed that he had lost the election fair and square.
That he intended to subvert the will of the people.
I doubt they can prove that.
I did not believe that the government would bring this indictment unless it had corroborated evidence that Trump had told people that he knew he had been defeated and was challenging the results for fraudulent and corrupt purposes.
But from what I have read and heard; they don't appear to have any such evidence.
When his son-in-law Jared Kushner was summoned before the grand jury, it was widely expected that he might provide that smoking gun, but he apparently said the opposite: that Trump actually believed he had won.
Others who spoke to Trump during the relevant time period also believe that he was persuaded that the election had been stolen.
I think he is wrong, but it's not what I or the grand jurors think: it's what Trump himself believed.
If the government fails to prove Trump's state of mind beyond a reasonable doubt, the indictment against him may well backfire - politically.
But perhaps, most notably, Smith's case against Trump is novel, untested and unique.
It may collapse under its own weight.
Our Constitution prohibits ex post facto prosecutions – that is prosecutions that are not based on clear rules easily knowable to defendants at the time of the alleged offenses.
Put simply, the law must be clearly established by firm precedents. There are few in this indictment.
As Thomas Jefferson once put it: the criminal law must be so clear that the average person can understand it if he 'reads it while running.' The spirit, if not the letter of this prohibition is violated when statutes are stretched and precedents are ignored.
Smith is charging Trump under a Reconstruction era law, adopted in 1870, that makes it a crime to 'conspire to injure, oppress, threaten, or intimidate any person' exercising their Constitutionally protected rights, including the right to vote.
The provision was intended to aid African American citizens emerging from the horrors of slavery. But it has not been used to prosecute someone for contesting the legitimacy of an election.
If it were it could have been employed against House Democrats, who challenged Trump's 2016 election victory, citing supposed voter suppression and Russian interference.
Of course, it should not have.
But prosecutor Jack Smith has a history of bringing speculative cases.
He won a corruption conviction against former governor of Virginia, Robert McDonnell, in 2014 only for it to be overturned by the U.S. Supreme Court in a unanimous 8-0 decision.
The Court concluded that there was no explicit proof of the charges and warned that 'the uncontrolled power of criminal prosecutors is a threat to our separation of powers.'
Yes, Smith is known for his creativity, but creativity has no proper role in the criminal justice system, especially when it comes to prosecuting political opponents.
Prosecutor Smith is probably counting on the fact that a District of Columbia jury will be comprised primarily of anti-Trump citizens, because the district is overwhelmingly Democrat and only a tiny percentage of potential jurors voted for him in the last election.
That is why Trump's lawyers will certainly move for a change of venue, perhaps to Virginia which is far more purple than the neighboring District.
If that motion fails, a conviction is virtually assured, but it is likely that that conviction will be scrutinized carefully on appeal by the Circuit Court and Supreme Court.