Analysts: Jack Smith’s Trump charge may be uncertain.
Legal Experts Question the Strength of Case Against Trump
According to two analysts, special counsel Jack Smith may be facing challenges in his federal election-related case against former President Donald Trump. Neama Rahmani, a former federal prosecutor, believes that the charge of corruptly obstructing an official proceeding, which Trump is accused of, has not been extensively litigated in recent decades. The ruling on whether it is applicable in this case is yet to come. Rahmani also pointed out that defendants charged in connection to the Capitol breach on January 6th have unsuccessfully argued that certifying the electoral votes was not an official proceeding. The bigger question, Rahmani says, is what constitutes “corruptly” and whether it includes criminal conduct such as trespassing or submitting fake electors. She predicts that this issue will likely reach the Supreme Court due to its impact on numerous criminal defendants, including the former president.
Lawfare’s Roger Parloff, in a recent article, highlighted the Department of Justice’s recent victories in two cases involving January 6th defendants. Parloff noted that Smith has relied on a statute used by other prosecutors to charge over 300 individuals in the January 6th case. The most serious counts in the indictment against Trump, carrying a maximum 20-year prison term, are based on this statute. However, the legal sufficiency of these counts has been challenged by Trump’s defense team.
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“Smith has relied on that statute and its conspiracy equivalent, 18 U.S.C. § 1512(k), for two of the four counts in his indictment against former President Donald Trump for allegedly conspiring to overthrow the 2020 election,” Mr. Parloff wrote. “Those counts, whose legal sufficiency Trump challenged in a motion to dismiss this week, are the most serious leveled against Trump in that case, carrying a maximum 20-year term of imprisonment.”
Three appellants in a January 6th case are petitioning the U.S. Supreme Court to review a recent appeals court ruling that favored the DOJ. The D.C. appeals court judges have been divided on the interpretation of the law, which determines the viability of a 20-year felony charge against an ex-president and major presidential candidate. If the case reaches a higher appellate court, the Department of Justice and Smith may face challenges due to the correlation between judges’ acceptance of the DOJ’s interpretations and their political affiliations.
Constitutional law professor Jonathan Turley has criticized the gag order imposed on President Trump in the January 6th-related case, calling it unconstitutional. An appeals court ruling to rescind the order is seen as a significant development. The gag order prohibited Trump from speaking about potential witnesses, court staff, or prosecutors. Turley argues that it is odd to issue such an order, especially considering the court’s rush to hold the trial before the election. He highlights the importance of free speech in the context of the upcoming election.
On November 3rd, the D.C. Circuit Court of Appeals paused the gag order to allow more time for consideration of Trump’s appeal. The three judges on the appeals court panel were appointed by Democratic presidents, while the judge who issued the gag order was appointed by former President Barack Obama.
Judge Chutkan had ruled against President Trump’s attorneys, stating that the gag order was not illegal as he is a criminal defendant. The order was requested by special counsel Jack Smith’s team, who argued that Trump’s criticism threatened the integrity of their case. However, the order has drawn criticism from the ACLU, which considers it flagrantly unconstitutional.
The Trump legal team has argued that the gag order violates his right to free speech, especially as he is a leading GOP candidate for president.
What are the key arguments being raised by Trump’s defense team challenging the legal sufficiency of the counts based on the statute used by the Department of Justice, and how might this impact the outcome of the case
Individual. Legal experts are questioning the strength of the case against former President Donald Trump, specifically regarding the charge of corruptly obstructing an official proceeding.
Neama Rahmani, a former federal prosecutor, suggests that this charge has not been extensively litigated in recent decades, making it uncertain whether it applies in this case. Additionally, defendants charged in connection to the Capitol breach have unsuccessfully argued that certifying the electoral votes was not an official proceeding. The definition of “corruptly” is also in question, with uncertainty about whether it includes criminal conduct such as trespassing or submitting fake electors. Rahmani predicts that this issue may reach the Supreme Court due to its impact on numerous criminal defendants, including the former president.
Lawfare’s Roger Parloff highlights the Department of Justice’s recent victories in two cases involving January 6th defendants. Parloff notes that Special Counsel Jack Smith has relied on a statute used by other prosecutors to charge over 300 individuals in the January 6th case. The most serious counts in the indictment against Trump, carrying a maximum 20-year prison term, are based on this statute. However, Trump’s defense team has challenged the legal sufficiency of these counts.
The article also mentions three appellants in a January 6th case petitioning the U.S. Supreme Court to review a recent appeals court ruling that favored the Department of Justice. The judges on the D.C. appeals court have been divided on the interpretation of the law, which determines the viability of a 20-year felony charge.
As legal experts question the strength of the case against former President Donald Trump, the outcome of the charge of corruptly obstructing an official proceeding remains uncertain. The definition of ”corruptly” and the application of the statute that forms the basis of the most serious counts in the indictment are being challenged by Trump’s defense team. With the possibility of this issue reaching the Supreme Court, the resolution may have significant implications not only for the former president but also for numerous criminal defendants involved in the Capitol breach case.
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