Jack Smith was supposedly going to follow the law. He was supposedly going to uncover the facts, provide the evidence, and then indict for actual crimes. That was the pitch.
Instead, on Tuesday, special counsel Jack Smith announced a series of criminal charges that don’t meet even the most basic scrutiny. In indicting President Trump for activities related to the 2020 election and January 6, Smith essentially presented an op-ed on why Donald Trump was a Bad Orange Man during the period between November 3, 2020 and January 6, 2021 – why Trump’s activities were effectively an incitement to riot and insurrection – and then charged neither incitement nor insurrection. He didn’t charge those crimes because he didn’t have the evidence for those crimes.
So instead, he charged a bunch of crimes that are ancillary or non-applicable. In the process, he has set up three massive landmines for the country: (1) the massive expansion of law enforcement power into traditionally protected areas of free speech; (2) the obvious politicization of our Justice Department, resulting in extraordinary further political polarization; (3) the potential final politicization of the Supreme Court as his stretch charges wind their way toward being overturned at the top level of the American judiciary.
The Legal Speciousness of Jack Smith’s Charges
The indictment acknowledges Trump’s right to speak freely and to legally challenge the election. But, Smith claims, Trump’s activities went beyond exercise of those rights and strayed into criminality:
The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results…Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election process.
So, how exactly did Trump’s activities violate the law while escaping the protection of the First Amendment? Smith alleges violations of three criminal statutes: 18 USC §371, “conspiracy to defraud the United States”; 18 USC §1512(k), “conspiracy to corruptly obstruct and impede the January 6 congressional proceeding”; and 18 USC §241, “conspiracy against the right to vote and to have one’s vote counted.”
All three of these charges are massive stretches, novel interpretations of the law that would endanger the First Amendment itself.
The first statute, conspiracy to defraud the United States, is typically charged only when someone perpetrates a “scheme to swindle victims out of money or tangible property,” as the National Review editorial board points out.
Mendacious rhetoric in seeking to retain political office is damnable — and, again, impeachable — but it’s not criminal fraud, although that is what Smith has charged. Indeed, assuming a prosecutor could prove beyond a reasonable doubt that Trump hadn’t actually convinced himself that the election was stolen from him (good luck with that), hyperbole and even worse are protected political speech.
The second statute, obstruction of justice, typically is utilized with regard to witness tampering or intimidation or bribery – not with regard to lobbying members of the government to fulfill a specious legal theory. For Smith to find obstruction here, he would have to show – as he alleges – that Trump “knowingly” attempted to fraudulently overturn the election. Not that Trump was informed that his efforts were spurious or ineffectual – but that he knew his efforts were a complete fabrication, and tried to push them anyway. If people can be charged criminally for advancing bad legal theories while lobbying the government, that is a fundamental assault on free speech. After all, what precisely would every Congressperson lobbying for Joe Biden to unilaterally issue executive orders on student loan debt be doing, for example?
The third statute is a civil rights statute – it was meant to stop racist whites from intimidating or attacking blacks to stop them from voting. It was not meant to stop people from advancing, lobbying, or rallying for bad legal theories. If it were, that would also violate the First Amendment – every Democratic rally on behalf of their unconstitutional voting proposals would be a legal issue.
Smith’s indictment fulfills none of the elements of these crimes. And he knows it. Which is why his announcement was all about how terrible Donald Trump is for his political activities, and not about his supposed legal violations.
The Double Standard
Conservatives are rightly pointing out the DOJ’s double standard with regard to Trump’s indictment here. This indictment was dropped the week after the exposure and scuttling of the DOJ’s secret sweetheart deal with Hunter Biden – a deal overseen not by an independent special counsel like Jack Smith, but by an attorney himself under the jurisdiction of Merrick Garland, who works for Joe Biden. That deal would have essentially forbade law enforcement from pursuing any issues relating to Hunter Biden’s business corruption, corruption that clearly implicates Joe Biden.
We can all see the double standard.
That double standard is being applied to attack Joe Biden’s chief political opponent, stacking up yet another case against Trump. The list of cases involving Trump is now endless, and paves a road directly from today to Election 2024. Here are the dates of Trump’s upcoming legal challenges:
Thursday: Trump goes to DC court on the new indictment
October 2: The Trump Organization civil suit begins
January 15, 2024: E. Jean Carroll’s civil defamation suit begins
January 29, 2024: A pyramid scheme class-action lawsuit begins against a Trump business
March 25, 2024: The Manhattan DA’s Stormy Daniels criminal case against Trump begins
May 20, 2024: Jack Smith’s classified documents trial begins
This timeline does not include the actual D.C. case itself, which will presumably be set as soon as possible. It also does not include pending indictments in Georgia for election interference, which are due to hit any day now.
Trump will spend the entire election cycle consumed with legal cases and bills; the media will cover the Trump legal issues endlessly; Joe Biden is likely to skate. This looks like legal election interference, as Trump says.
That claim is likely to elevate Trump to the Republican nomination, as GOP voters rally to his side, hoping that he will provide vengeance on the Biden DOJ and the media. But as Trump’s campaign sags into endless legal and financial quagmires in the general, that hope may prove empty.
The Supreme Court Challenge
Jack Smith’s indictment is weak enough that it will likely be overturned by the Supreme Court. As head of the DOJ’s public integrity unit, he oversaw the prosecution of Virginia Governor Bob McDonnell – a prosecution so bogus that it was overturned by a unanimous Supreme Court. He also attempted to try former Democratic vice-presidential nominee John Edwards, but a jury acquitted Edwards.
Imagine that this case ends up being overturned by a 6-3 or 5-4 Supreme Court vote, with three Trump Supreme Court nominees voting in his favor. The resulting panic by the Left will be overwhelming. It will dwarf the panic over Bush v. Gore. John Roberts’ dreams of a well-respected Supreme Court will die an ugly death. And that’s Smith’s fault, since he has to know how bogus these charges are.
All of this was unnecessary. Smith’s case against Trump on the classified documents charges is strong from a legal point of view (although it’s obvious a political double standard not applied to Hillary Clinton). But Smith couldn’t leave well enough alone for those who hate Trump – he had to put Trump in the dock for January 6, even though the American people have and will continue to render their judgment on Trump’s political activities surrounding Election 2020. In the process, Smith threatens the First Amendment, the DOJ’s legitimacy, and in the end, the credibility of the Supreme Court, all in a quixotic quest to get the Bad Orange Man.