Having read the indictment, having followed Jan. 6-related cases closely, having read extensive news coverage, and having spoken to others with experience in this area of the law, I do not believe any of these charges can fairly be proven beyond a reasonable doubt in front of a fair judge and jury. Additionally, I expect that were this case to reach the Supreme Court, the court would reject Smith’s theories of liability on all or at least some of these counts, as it did unanimously with his prosecution of former Virginia Gov. Bob McDonnell.
Smith and his team did a real disservice to the cause of justice by bringing this indictment.
1. Trump’s State of Mind
In the Trump documents case, we’ve already seen how thorny issues of intent can be. There, many of us have argued that, in light of the president’s rights and responsibilities under the Presidential Records Act, it is essentially impossible for Jack Smith to prove that Trump knowingly violated the Espionage Act subsection charged.
Here, we have a similar issue. For all four of these charges, Smith needs to prove beyond a reasonable doubt that Trump knew his claims about election integrity were false, and that he knew the legal theories his team advanced were not viable.
Not just that these claims were false, not just that Trump might have known that they were false, or that Trump should have known that they were false. If Trump did not actually know his claims were false and the theories he was advancing were wrong, then I do not see how he can be found guilty of any of the four charges in the indictment.
While Smith points to a few statements Trump allegedly made to others at various stages of his election challenges where he impliedly (if you squint hard enough) appears to concede defeat, the overwhelming gravamen of Trump’s statements and actions indicate he believed that his claims — both factual about the conduct of the election and legal about potential remedies — were true. Considering the record as a whole, how does one go about proving Trump didn’t believe his own arguments?
Moreover, three of these counts charge conspiracy. For those counts, Smith likely has to prove that Trump’s alleged co-conspirators also knew the claims they were advancing were false. And that Trump and his alleged co-conspirators all agreed, knowing that the claims were false, to press ahead anyway. Given the list of co-conspirators, their activities during the time period in question, and the interactions between them and Trump that have already been made public, I think the opposite is likely the case.
In short, proving the requisite intent on the part of Trump and his alleged co-conspirators on all of these charges is likely impossible, at least in front of a fair jury in a fair courtroom. This indictment should never have been brought.
2. Criminalizing Political Speech
Others have made this point publicly already, so I won’t belabor it. To put it simply, Jack Smith’s theory of the case necessarily requires criminalizing political speech. This is core, protected activity under the First Amendment, and the legal implications are truly scary for our democracy.
Is any public challenge to a certified federal election a criminal act? In Jack Smith’s telling, the answer is probably yes. At what point do election challenges become criminal? Based on Jack Smith’s theory of the case, the answer to that is entirely unclear, meaning that the very fact that this indictment was brought may have a deeply chilling effect on protected speech in years to come.
Hillary Clinton, Stacey Abrams, and many, many others have claimed for years that their elections were stolen from them. Abrams continued her efforts to challenge her defeat to Brian Kemp long after the results were clear. Andrew Jackson claimed John Quincy Adams cheated him out of the election of 1824. After the 2000, 2004, and 2016 elections, Democrats attempted to interfere with the electoral count process. Did those actions constitute a conspiracy against rights under § 241? Under Jack Smith’s theory of the case, I think the answer is unclear, but possible.
Taking political speech and political acts of this sort and shoehorning them into criminal statutes that have never before been used in this way is terrifying. Political candidates should not live in fear of prosecution by their political opponents for stating their views about their elections.
Jack Smith, in his rush to “get Trump,” has done serious violence to our constitutional order and Bill of Rights.
3. Proving Trump’s Specific Intent
4. Proving a Fraud Conspiracy
5. Misapplication of Obstruction Law
6. Perfectly Timing the Trial for Election Season
The Hill ran a tiresome story yesterday headlined, “Trump indicted on Jan. 6 charges.” On Tuesday — the day after Devon Archer testified about Joe Biden’s shady connections to a bunch of sketchy oligarchs — special counsel Jack Smith issued a horrible 45-page indictment tacking yet another criminal case onto President Trump’s mounting legal docket.
