{"id":1989448,"date":"2023-08-03T07:33:05","date_gmt":"2023-08-03T11:33:05","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/6-ways-jack-smiths-latest-indictment-is-legally-flawed-and-politically-shady\/"},"modified":"2023-08-03T07:37:23","modified_gmt":"2023-08-03T11:37:23","slug":"6-ways-jack-smiths-latest-indictment-is-legally-flawed-and-politically-shady","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/6-ways-jack-smiths-latest-indictment-is-legally-flawed-and-politically-shady\/","title":{"rendered":"6 Problems with Jack Smith&#8217;s Recent Indictment: Legal and Political Concerns"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"float:left\"><div class=\"counts mashsbcount\">22<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2F6-ways-jack-smiths-latest-indictment-is-legally-flawed-and-politically-shady%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1989448&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div class=\"article-content\">\n<p>Special Counsel Jack Smith\u2019s latest indictment against President Trump seeks\u200d to\u2064 <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/mitt-romney-explodes-on-tulsi-gabbard-her-treasonous-lies-may-well-cost-lives\/\" title=\"Mitt Romney Explodes On Tulsi Gabbard: \u2018Her Treasonous Lies May Well Cost Lives\u2019\">criminalize political speech<\/a>\u2064 and\u2063 taking incorrect legal advice. Americans of all political stripes should be furious and deeply concerned by \u200bthe course Smith has set this country on.<\/p>\n<p>I have reviewed the new Trump indictment closely, and sadly, it is\u2063 exactly \u200dwhat \u2062we have come to expect from Smith\u2019s team \u200c\u2014 a highly political document, riddled with legal and\u200b factual infirmities. This indictment should have never been brought\u200d to a grand jury\u200c in the first\u200d place. Moreover, \u200dits timing, particularly in light of Smith\u2019s statements and actions in the Trump documents case, \u2062is so highly suspect \u200dthat it casts a political pall over \u200bthe whole case.<\/p>\n<div class=\"fdrlst__b89e9-paragraph-2-long d-flex justify-content-center\" style=\"margin-left: auto; margin-right: auto; text-align: center; \" id=\"fdrlst__b89e9-1868149079\">\n<div id=\"div-gpt-ad-1379703300879-0\" class=\"mb-30\"><\/div>\n<\/div>\n<div class=\"fdrlst__b89e9-48ea3f0bb0c73d6cf6fd4fc9dce45189 fdrlst__b89e9-paragraph-2\" id=\"fdrlst__b89e9-48ea3f0bb0c73d6cf6fd4fc9dce45189\"><\/div>\n<h2 class=\"wp-block-heading\"><strong>The Indictment<\/strong><\/h2>\n<p>Smith\u2019s \u200bindictment contains four counts against Trump.<\/p>\n<p>The first, brought under 18\u200b U.S.C. \u200b\u00a7 371, alleges that Trump conspired to defraud\u2062 the United\u2062 States\u200b \u201cby using knowingly false claims of election fraud \u2064to obstruct federal government function by which those results are collected, counted and certified.\u201d<\/p>\n<p>The second and third allege conspiracy to obstruct an \u200cofficial proceeding and the\u2064 actual\u200c or\u200c attempted obstruction of an official proceeding, both in violation of \u2063subsections of 18 U.S.C.\u2064 \u00a7 1512.<\/p>\n<p>The fourth alleges\u200b that Trump committed a \u200b\u201cconspiracy against rights,\u201d by knowingly conspiring to deprive Americans\u200c of their right to vote and have their votes counted, in violation \u2063of 18 U.S.C. \u00a7 241.<\/p>\n<div class=\"fdrlst__b89e9-188325503f15e52b32f1aa08e3748b8f fdrlst__b89e9-paragraph-6\" id=\"fdrlst__b89e9-188325503f15e52b32f1aa08e3748b8f\"><\/div>\n<p>Having read the indictment, having followed\u200b Jan. 6-related cases closely, having read extensive news coverage, and having\u2062 spoken to others with experience in \u200dthis area of the law, I do not believe any of these \u2063charges can\u2063 fairly be proven beyond \u200da\u2063 reasonable doubt in front of a fair\u2062 judge and jury. Additionally, I expect that were \u200dthis \u2062case to reach the\u200c Supreme Court, the court would reject Smith\u2019s theories of liability on all or at least some of these counts, as it\u200d did unanimously\u200b with his prosecution \u200bof\u2062 former Virginia Gov. Bob\u2063 McDonnell.<\/p>\n<p>Smith and his team did a real disservice to \u2064the cause of justice by bringing this indictment. <\/p>\n<h2 class=\"wp-block-heading\"><strong>The State of\u200d Mind<\/strong><\/h2>\n<p>In the Trump documents \u2064case,\u200c we\u2019ve already\u200d seen how thorny \u2064issues\u2064 of intent can be. There, many of us \u2062have argued that, in light of the president\u2019s\u2064 rights and\u2064 responsibilities under the Presidential Records Act, it is essentially impossible for \u2064Jack Smith to prove that Trump knowingly violated \u2064the Espionage Act\u2063 subsection charged.<\/p>\n<p>Here, \u2064we have a similar issue. For \u2064all\u200b four of these\u200b charges, Smith needs to prove beyond a reasonable doubt that Trump \u2063knew his claims about election integrity were false, and that he\u2064 knew the legal theories his team\u200b advanced\u2063 were \u2063not \u200dviable.<\/p>\n<div class=\"fdrlst__b89e9-364618ca7fa8517a407292ef4818152c fdrlst__b89e9-paragraph-10\" id=\"fdrlst__b89e9-364618ca7fa8517a407292ef4818152c\"><\/div>\n<p>Not\u200b just that these claims were\u2062 false, not just that Trump might have \u200bknown that they were false, or that Trump should have known that they \u2064were false. If Trump did not\u200b actually know his\u2062 claims were false\u200d and the\u200d theories he was advancing were wrong, then I do not see how he can be found guilty of any of the four charges in\u2062 the indictment.<\/p>\n<p>While Smith points to a few statements Trump\u2064 allegedly made to others at various stages\u2063 of his election challenges where \u2064he impliedly (if you squint hard enough)\u200c appears to concede defeat, the overwhelming gravamen of Trump\u2019s statements and actions \u2063indicate he believed\u200d that his claims \u2014 both factual about the conduct of \u2063the election and legal about potential remedies \u2014 were true. Considering \u200dthe \u2064record as\u200c a whole, how does one go about proving Trump didn\u2019t believe his own arguments?<\/p>\n<p>Moreover, three of these \u200bcounts charge\u2062 conspiracy. \u2063For those counts, Smith likely\u200c has to prove that Trump\u2019s alleged \u2063co-conspirators also knew the claims they were advancing were false. And that Trump and \u200chis alleged co-conspirators all agreed, knowing that the claims \u200cwere false,\u200c to press ahead anyway.\u200d Given the list of co-conspirators, their activities during the time\u2064 period in question, and the \u200binteractions between them and Trump that have already been made public, I think the opposite is\u200b likely the case.<\/p>\n<p>In short, proving the requisite intent on the part of\u2063 Trump and his alleged co-conspirators\u200d on all of these charges is likely impossible, at\u200b least \u2062in front\u2063 of a fair jury in a fair courtroom. This indictment should never have been brought.<\/p>\n<h2 class=\"wp-block-heading\"><strong>Criminalizing Political Speech<\/strong><\/h2>\n<p>Others have made this point publicly already, so I\u200d won\u2019t belabor it. To\u2062 put it simply, Jack Smith\u2019s theory of the <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/6-ways-jack-smiths-latest-indictment-is-legally-flawed-and-politically-shady\/\" title=\"6 Problems with Jack Smith's Recent Indictment: Legal and Political Concerns\">case necessarily requires <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/pro-trump-meme-maker-ricky-vaughn-indicted-for-using-twitter-to-spread-election-disinformation-to-hillary-clinton-voters-faces-10-years-in-prison\/\" title=\"Pro-Trump Meme Maker \u201cRicky Vaughn\u201d Indicted For Using Twitter to \u2018Spread Election Disinformation\u2019 to Hillary Clinton Voters \u2013 Faces 10 Years in Prison\">criminalizing political speech<\/a><\/a>. This is core, protected activity \u2062under the First Amendment, and the legal implications are truly scary\u2062 for our democracy.<\/p>\n<p>Is any public challenge \u2064to\u200d a certified \u2063federal election\u200b a criminal act? \u200bIn Jack Smith\u2019s telling, \u200bthe answer is probably yes. At what point do election challenges become criminal? Based on Jack Smith\u2019s theory of the case, the answer\u2062 to that\u2064 is entirely unclear, meaning that the very fact that this\u200c indictment was brought may have a deeply chilling\u200c effect on protected \u200dspeech in years to\u200c come.<\/p>\n<p>Hillary Clinton, Stacey Abrams, and many, many others have claimed for \u200dyears that their elections\u2063 were stolen from\u200d them.\u200b Abrams continued her efforts to\u2064 challenge her\u200d defeat to Brian\u200b Kemp long after the results were clear. Andrew Jackson claimed John Quincy Adams cheated him out of the election of\u2064 1824. After the 2000,\u2062 2004, \u2064and 2016 elections, Democrats attempted to interfere \u200dwith the electoral count process. Did those actions constitute a conspiracy against rights under \u2064\u00a7 241? Under Jack Smith\u2019s theory of the case, I think the answer is\u2064 unclear, but possible. <\/p>\n<p>Taking political speech and\u200c political\u2062 acts of this\u200c sort and \u200cshoehorning them \u200cinto 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.<\/p>\n<p>Jack Smith, in his rush to \u201cget Trump,\u201d has done serious violence to our \u2063constitutional \u2063order and Bill of Rights.<\/p>\n<h2 class=\"wp-block-heading\"><strong>Proving Trump\u2019s Specific \u2064Intent <\/strong><\/h2>\n<p>Section 241 \u2064is a statute that was originally designed to deal with violence against black voters by the\u2062 Ku Klux Klan, \u2064and other similar efforts to deprive people of their constitutional rights. Jack\u2062 Smith\u2019s use of it here is outrageous on\u200c its face, designed to inflame perhaps \u200bmore than anything else.\u2063 But there are also\u2063 serious legal issues\u2064 that Smith and his team seem to \u2063have been willing to ignore in terms of the statute\u2019s applicability to the facts alleged.<\/p>\n<p>In <em>United States v. Guest<\/em>, \u2064the Supreme \u2064Court grappled with the constitutionality of this statute, facing an argument that it was unconstitutionally vague and overbroad. The Supreme Court\u2063 ultimately held that the statute was constitutional, but only because\u200c of the heightened \u2062intent requirements that follow from it being a\u200b conspiracy statute. In the Supreme Court\u2019s words, \u201c[a] specific intent to interfere \u200bwith the federal\u2063 right\u2064 [at issue] must be proved\u201d on the\u200d part of the alleged conspirators. Only because of that\u200c specific intent requirement was the prosecution in that case allowable, and was the statute\u200c itself deemed to \u2063pass constitutional muster.<\/p>\n<p>Eight years later, in<em> Anderson v. United States<\/em>, the Supreme Court addressed the applicability of \u00a7 241 to a scheme to cast fake votes for federal, state,\u2062 and local candidates in West Virginia. The court\u2062 cautioned that \u201c[i]t \u200cis established that since the gravamen\u2063 of the offense\u2063 under \u2064\u00a7 241 is \u200cconspiracy, the prosecution must show that the offender acted with a specific intent to interfere \u2063with the federal rights \u200din question.\u201d Furthermore, the court stated that \u201cspecial care\u201d was warranted in \u200bassessing this intent, because\u200b \u201ccharges of conspiracy are not to \u2062be made out by piling inference\u2063 upon inference, thus fashioning \u2026 a\u2062 dragnet to \u2063draw in all substantive crimes.\u201d<\/p>\n<p>To prove his case, it\u2019s not enough for \u2062Jack Smith to prove that Trump and his alleged co-conspirators sought \u2064to overturn certified election results \u2014 he \u2062needs to prove they acted with\u200c specific intent to deprive people of the right to \u2062have their votes counted. This cannot be established by inference, under binding Supreme Court precedent. Smith needs evidence that Trump\u2019s intent was specifically to deprive people of their right \u2062to \u200bhave their votes counted.<\/p>\n<p>On the face of the indictment and public record, \u2062it doesn\u2019t appear he has anything close to meeting \u2062this high bar.<\/p>\n<h2 class=\"wp-block-heading\">Proving a Fraud Conspiracy<\/h2>\n<p>Section 371 is a statute that criminalizes defrauding the federal government or interfering\u2062 in lawful functions of government. \u200cIts origins are in the tax fraud context, and it was originally cabined closely to property fraud against the federal government. Even after the statute was expanded, though, the Supreme Court\u200d has urged \u2063caution throughout the \u200bstatute\u2019s history that a conspiracy charge relating\u200d to the obstruction of governmental functions\u200d must be\u200d premised on \u2063the use of \u201cdeceit, craft or\u2064 trickery, \u2062or at\u200c least by means that are dishonest,\u201d as was decided in <em>Hammerschmidt v. United \u2063States<\/em>. \u201cOpen defiance\u201d of the law, for \u200cexample, \u200ccannot give \u200brise to a \u00a7\u2064 371 charge.<\/p>\n<p>Courts\u2062 have consistently held that obtaining a \u2062conviction under \u200cthis statute requires both the existence\u2063 of an agreement to achieve an unlawful objective, as well as \u200cdeliberate, knowing,\u200b and\u200b specific intent to participate\u2064 in that agreement.<\/p>\n<p>Smith\u2019s theory is that \u200dTrump and his alleged co-conspirators conspired to \u201cdefeat the lawful federal government function by which the results of the presidential election are collected,\u200d counted,\u2063 and certified by \u2064the federal government.\u201d But\u200b in light of the \u200brequirements\u2063 for proving fraud conspiracy under\u200c \u00a7 371, Smith needs to \u2062show \u200dthat Trump and his team knew their theories were groundless when they promoted them to state legislators and other decision-makers in the electoral count process\u200c and encouraged those officials to take various official actions. And that Trump and his team \u200dagreed this \u2064was the plan\u2063 \u2014 promoting theories they knew\u200b were groundless, based on facts that they knew were false, to these legislators and officials.<\/p>\n<p>The fact that Trump received advice\u200b to the contrary just doesn\u2019t \u2063cut it, from a\u2062 legal perspective, when it comes to proving a fraud conspiracy \u200bunder \u00a7 371. This charge appears to be dead on arrival from a\u200c legal perspective.<\/p>\n<h2 class=\"wp-block-heading\"><strong>Misapplication of<\/strong>  Obstruction \u200bLaw<\/h2>\n<p>Section 1512\u2062 was originally enacted as \u200dpart of the Sarbanes Oxley Act in 2002, intended to deal with the fallout\u2064 from the Enron collapse and investigations. Subsection (c), under which Trump has been charged, deals primarily with destroying evidence in advance of judicial proceedings or legislative inquiries,\u2062 but it also \u200bcontains a catchall provision that criminalizes corruptly \u201cobstructing\u201d an official proceeding.<\/p>\n<p>The \u2063Biden DOJ has\u2062 used this catchall provision, controversially, to prosecute Jan. 6 defendants, and two of \u200bthe counts in this new indictment track this theory \u2014 that Trump\u2019s activities \u2064and statements constituted an obstruction of an official proceeding, namely the electoral count process.<\/p>\n<p>This is \u200dan issue that is expected to come before the Supreme Court sooner rather than later. In a sharply divided panel opinion this \u200cApril, the D.C. Circuit allowed \u00a7 1512 charges to proceed against \u200cthree Jan. 6 defendants. But\u200c it did\u2063 so only on the basis that, in the words of Judge \u2063Justin Walker\u2019s decisive\u2062 concurrence, the act\u2019s requirement of a \u201ccorrupt\u201d mental state on the part of the defendants sharply delimited its scope. In Walker\u2019s \u2063view, to convict under this statute, a defendant must have\u2064 acted\u200b with the specific intent \u201cto procure an unlawful benefit either for himself or for some other person.\u201d (Judge Katsas dissented and would have dismissed the charges entirely).<\/p>\n<p>Under this reading of the statute, it is not enough that Trump (and, in the case of the conspiracy charge, his alleged \u2064co-conspirators) called for protests. It is not enough that \u200dTrump tried to\u2062 prevent the\u2063 certification of the election \u200bor the counting of electoral votes. \u2063Trump could \u2062have burned\u2063 down the Capitol personally and \u200cthat wouldn\u2019t necessarily meet this high bar. \u200cHe must be proven\u200b beyond a reasonable doubt to\u2063 have done what he did to procure a benefit\u200d for himself that \u200che knew to be unlawful.\u200c As with \u200bthe other statutes discussed above, this is a very high bar to meet, and the facts as presented simply do not support this charge.<\/p>\n<h2 class=\"wp-block-heading\">Perfectly Timing the \u2064Trial for Election Season <\/h2>\n<p>As he did with his original indictment \u2063in the documents, Jack Smith accompanied his announcement of charges yesterday with a cynical call for a \u201cspeedy trial.\u201d\u2062 More than\u200c anything\u2062 else, Smith\u2019s insistence that these cases that \u200bhe is bringing should be tried at the \u2063height of a presidential election\u200d adds fuel\u200c to the fire \u2064of Trump\u2019s expressed view that the special counsel is waging a \u200bpolitical campaign against him, not a valid legal investigation.<\/p>\n<p>There \u200bis simply no reason why this case needs to\u2063 be litigated now, as opposed to two years ago, or as opposed to after the presidential election \u200bin 2024. In\u2062 the documents case, Smith\u200c followed his speedy \u200btrial call with a voluminous discovery production consisting of close to a million pages of documentary evidence, nine months of video\u200b recordings, and terabytes of \u2062data to be analyzed by Trump\u2019s defense team.\u2063 He then proceeded\u2063 to file a superseding indictment adding new charges and a new defendant. That \u200bcase was either ready for trial \u200dat the time it was brought, or it wasn\u2019t, but Smith\u200d can\u2019t have it both ways \u2014 his public statements and \u200dcourt filings amount to a gaslighting of the federal court and indeed of the American people.<\/p>\n<p>In this case, the timing concerns are even more severe. The facts at issue date back to 2020 and the first few days of 2021. President Trump has already been\u200c impeached and acquitted for the same conduct he now \u200bfaces\u200b these criminal charges for. Trump is now running to be president again (and winning in many polls). <\/p>\n<p>Inserting this case into the presidential\u2063 election season\u200c has all the\u2064 appearances of an attempt by Smith to substitute the judgment of his office, \u2062a single judge, and 12 \u200bD.C. jurors for the millions of Americans\u200d who would otherwise \u2062have had the opportunity to weigh these facts, alongside \u2064all the other political considerations that\u2062 go into\u2064 a presidential election. These millions of Americans will likely be faced with a choice to vote for Smith\u2019s\u2062 boss, Joe Biden, or his likely opponent, Donald Trump.<\/p>\n<p>Prosecuting a political opponent during a presidential \u2063election in this manner smacks of banana republic politics.<\/p>\n<div class=\"fdrlst__b89e9-e476ae1343fb3dacf943457ab8e7fc23 fdrlst__b89e9-after-post-content\" id=\"fdrlst__b89e9-e476ae1343fb3dacf943457ab8e7fc23\"><\/div>\n<hr class=\"wp-block-separator\">    \t\t\t\t\t   \t\t\t\t\t\t\t\t\t<\/div>\n","protected":false},"excerpt":{"rendered":"<p>Special Counsel Jack Smith&#8217;s recent indictment of President Trump aims to criminalize political speech and following incorrect legal advice. This alarming course set by Smith should deeply concern and anger Americans across the political spectrum. After closely reviewing the new Trump indictment, it is disheartening to see that it aligns precisely with our expectations.<\/p>\n","protected":false},"author":2124,"featured_media":1989449,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"https:\/\/cndimages.nyc3.digitaloceanspaces.com\/breaking-news\/wp-content\/uploads\/2021\/01\/IMG_2758-scaled-1.jpg","fifu_image_alt":"","footnotes":""},"categories":[546],"tags":[],"class_list":["post-1989448","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-the-federalist"],"fifu_image_url":"https:\/\/cndimages.nyc3.digitaloceanspaces.com\/breaking-news\/wp-content\/uploads\/2021\/01\/IMG_2758-scaled-1.jpg","_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1989448","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/2124"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1989448"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1989448\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/1989449"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1989448"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1989448"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1989448"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}