6 Ways Jack Smith’s Latest Indictment Is Legally Flawed And Politically Shady
By: Will Scharf
Jack Smith, in his rush to ‘get Trump,’ has done serious violence to our constitutional order and Bill of Rights.
Special Counsel Jack Smith’s latest indictment against President Trump seeks to criminalize political speech and taking incorrect legal advice. Americans of all political stripes should be furious and deeply concerned by the course Smith has set this country on.
I have reviewed the new Trump indictment closely, and sadly, it is exactly what we have come to expect from Smith’s team — a highly political document, riddled with legal and factual infirmities. This indictment should have never been brought to a grand jury in the first place. Moreover, its timing, particularly in light of Smith’s statements and actions in the Trump documents case, is so highly suspect that it casts a political pall over the whole case.
The Indictment
Smith’s indictment contains four counts against Trump.
The first, brought under 18 U.S.C. § 371, alleges that Trump conspired to defraud the United States “by using knowingly false claims of election fraud to obstruct federal government function by which those results are collected, counted and certified.”
The second and third allege conspiracy to obstruct an official proceeding and the actual or attempted obstruction of an official proceeding, both in violation of subsections of 18 U.S.C. § 1512.
The fourth alleges that Trump committed a “conspiracy against rights,” by knowingly conspiring to deprive Americans of their right to vote and have their votes counted, in violation of 18 U.S.C. § 241.
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.