{"id":2247385,"date":"2024-05-18T07:10:02","date_gmt":"2024-05-18T11:10:02","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/flaw-and-order-jack-smith-election-case-hangs-on-by-a-thread\/"},"modified":"2024-05-18T07:13:23","modified_gmt":"2024-05-18T11:13:23","slug":"flaw-and-order-jack-smith-election-case-hangs-on-by-a-thread","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/flaw-and-order-jack-smith-election-case-hangs-on-by-a-thread\/","title":{"rendered":"In Crisis: Jack Smith&#8217;s Election Case on Thin Ice"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">18<\/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%2Fflaw-and-order-jack-smith-election-case-hangs-on-by-a-thread%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=2247385&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--><p>Former President Donald Trump faces legal challenges amid four\u2064 criminal cases, sparking debate over accountability\u200d and legal\u200c interpretations. The scrutiny by partisan district \u2064attorneys and\u2064 the Biden Justice Department has raised concerns. The article explores the <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/trump-prosecutor-nathan-wade-resigns-from-fani-williss-office\/\" title=\"Nathan Wade, Prosecutor on Trump Case, Steps Down from Fani Willis\u2019s Team\">unfolding legal saga<\/a> \u2062against Trump, detailing the complexities of the cases and the uphill battle for conviction, \u2063particularly in the Washington\u200c case involving Jack Smith.  <\/p>\n<p class=\"readmore\">\n    <button onclick=\"showReadMore()\" id=\"readmorebtn\">Read more&#8230;<\/button>\n<\/p>\n<hr id=\"line\">\n<span id=\"more\"><\/p>\n<div>\n<p><em>Former President Donald Trump\u2019s four criminal cases have created an unprecedented legal gauntlet for him to run before voters have a chance to decide if he should return to the Oval Office. While Democrats cheer what they see as <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/flaw-and-order-trump-classified-documents-case-suffers-snags\/\" title=\"Flaw and order: Trump classified documents case suffers snags\">long-overdue accountability<\/a> for the former president, some legal experts have expressed concerns that the cases \u2014 half are brought by partisan district attorneys, and the other half are overseen by the Biden Justice Department \u2014 are built on novel and unfair interpretations of the law. In this series, the <\/em>Washington Examiner <em>will take a look at the flaws that could unravel the cases against Trump.\u00a0Part four will look at the Washington case and the tough time Jack Smith will have securing a conviction.<\/em><\/p>\n<p><strong>Part One:<\/strong> <a href=\"https:\/\/www.washingtonexaminer.com\/news\/justice\/3002990\/flaw-and-order-trump-trial-georgia\/\" target=\"_blank\" rel=\"noreferrer noopener\">Trump trial in Georgia built on weak foundation<\/a><br \/><strong>Part Two<\/strong>: <a href=\"https:\/\/www.washingtonexaminer.com\/news\/justice\/3005333\/flaw-and-order-trump-classified-documents-case\/\">Trump classified documents case suffers snags<\/a><br \/><strong>Part Three:<\/strong> <a href=\"https:\/\/www.washingtonexaminer.com\/news\/justice\/3006916\/trump-new-york-trial-cracks-apart\/\" target=\"_blank\" rel=\"noopener\" title=\"Trump\u2019s New York trial cracks apart\">Trump\u2019s New York trial cracks apart<\/a><\/p>\n<p>The Department of Justice\u2019s election interference case against <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/donald-trump\" target=\"_blank\" rel=\"noopener\" title=\"Donald Trump\">Donald Trump<\/a> is in limbo, but even if it returns to normal proceedings, <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/jack-smith\" target=\"_blank\" rel=\"noopener\" title=\"Supreme Court\">Jack Smith<\/a> has an uphill climb to securing a conviction of the former president.<\/p>\n<p>The special counsel, who is leading the prosecution, is at the mercy of the <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/supreme-court\/\" target=\"_blank\" rel=\"noopener\" title=\"Supreme Court\">Supreme Court<\/a> as it weighs two decisions relevant to his indictment. One of the decisions threatens to imperil the case, while the other could result in a small setback for Smith. The high court could hand down these decisions by the end of June.<\/p>\n<p>But the Supreme Court aside, Smith also relies heavily on Trump\u2019s speech as a means to incriminate him, and legal experts say that if the case resumes, Smith faces the difficult challenge of proving to jurors that the speech was not protected by the Constitution.<\/p>\n<h2>Looming immunity decision<\/h2>\n<p>The most pressing decision before the Supreme Court is whether Trump had absolute immunity from prosecution because the actions cited in the indictment were performed as part of his official duties as president.<\/p>\n<p>Trump argued that his case should be dismissed over the immunity argument, but Smith disagreed, and Judge Tanya Chutkan, an Obama appointee, denied Trump\u2019s request.<\/p>\n<figure><figcaption>Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at an office of the Department of Justice in Washington. (AP Photo\/J. Scott Applewhite)<\/figcaption><\/figure>\n<p>A Washington, D.C., appellate court roundly affirmed Chutkan\u2019s decision, saying, \u201cWe cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.\u201d<\/p>\n<p>\u201cIt would be a striking paradox if the President, who alone is vested with the constitutional duty to \u2018take Care that the Laws be faithfully executed,\u2019 were the sole officer capable of defying those laws with impunity,\u201d the appellate judges said.<\/p>\n<p>Trump then turned to the Supreme Court, asking it to overturn the appellate court\u2019s decision, and the justices took up his request and heard oral arguments on the matter last month.<\/p>\n<p>The court\u2019s decision, which could come as early as next week, could doom the case entirely. However, based on oral arguments, other scenarios appear more likely, and those scenarios could still be favorable to Trump.<\/p>\n<p>Dan Epstein, a constitutional law professor at St. Thomas University, told the <em>Washington Examiner<\/em> he could see the justices look for some kind of \u201cout,\u201d such as declaring that Congress must first fully exercise its impeachment authority or issue a contempt determination before any part of the case could continue in federal court. Charges that Trump obstructed Congress could be remedied with a contempt vote, Epstein opined.<\/p>\n<p>\u201cI certainly think that the Supreme Court, particularly [Chief Justice John] Roberts, would happily say, \u2018This case is not ripe because we think Congress has procedures that need to be exhausted before we decide this case,\u2019\u201d Epstein said.<\/p>\n<p>Another possible outcome could be that the Supreme Court remands to the district court the task of distinguishing which acts were \u201cofficial\u201d in the indictment, which would dramatically lengthen the pre-trial process and possibly weaken Smith\u2019s indictment if some acts are stripped out of it.<\/p>\n<p>Epstein said he believes that is a less likely possibility.<\/p>\n<p>\u201c[The Supreme Court] could have done what\u2019s called a GVR; it could have granted, vacated, and remanded without actually hearing oral arguments and all of that, if the majority of justices thought, \u2018Look, we don\u2019t even have to get into complicated constitutional questions,\u2019\u201d Epstein said. \u201cSo if they really thought that was what to hang their hat on, they could have GVR\u2019d it.\u201d<\/p>\n<p>In yet another scenario, the Supreme Court could outright deny Trump\u2019s request, dealing a victory to Smith and putting the case back on track at the <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/how-biden-is-shaping-the-federal-judiciary\/\" title=\"How Biden Is Shaping the Federal Judiciary\">district court level<\/a>.<\/p>\n<p>Lastly, in the event the Supreme Court were to agree fully with Trump that he was immune from prosecution, the case would be tossed out entirely.<\/p>\n<h2>Obstruction charge challenge<\/h2>\n<p>A second question before the Supreme Court has fewer implications for Trump but could still affect his indictment by scrapping one of the charges in it.<\/p>\n<p>The case, <em>Fischer v. United States<\/em>, examines a statute that hundreds of defendants involved in the Jan. 6 breach were charged under. The statute prohibits obstructing an official proceeding through various types of document tampering, but the law\u2019s \u201cor otherwise obstructs\u201d clause has created a legal headache. The Supreme Court must determine if physical obstruction, like what many of the Jan. 6 defendants did, counts. If the high court decides it does not count, hundreds of cases could be upended, and convictions could be overturned.<\/p>\n<p>Trump, too, was charged under this obstruction statute.<\/p>\n<p>While many have speculated that Smith incorporated enough evidence for his charges to withstand any conclusion the justices reach in <em>Fischer<\/em>, Trump\u2019s defense attorneys could find a \u201csmall wrinkle,\u201d according to legal analyst Dennis Aftergut.<\/p>\n<p>\u201cTrump\u2019s lawyers could argue that his actions were not \u2018similar to\u2019 those described in section 1512(c)(1) in this super-narrow sense: Trump and his associates\u00a0are accused of creating false documents, they did not \u2018alter, destroy, mutilate, or conceal a record, document, or other object,&#8217;\u201d Aftergut <a href=\"https:\/\/www.cnn.com\/2023\/12\/14\/opinions\/trump-supreme-court-january-6-fischer-aftergut\/index.html\" target=\"_blank\" rel=\"noopener\" title>wrote<\/a> in reference to the language in the statute.<\/p>\n<h2>First Amendment worries<\/h2>\n<p>Smith alleged in his indictment that Trump \u201cused <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/j6-committee-seeks-to-criminalize-republican-fundraising\/\" title=\"J6 Committee Seeks To Criminalize Republican Fundraising\">knowingly false claims<\/a> of election fraud\u201d to <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/review-2000-mules\/\" title=\"REVIEW: \u20182000 Mules\u2019\">pressure election officials<\/a> into taking unlawful measures to attempt to overturn the election results.<\/p>\n<p>The special counsel also said Trump intentionally deceived his supporters to the point that he drove them to storm the Capitol on Jan. 6, 2021, as Congress\u2019s election certification proceedings were underway, thereby temporarily obstructing the certification of the election.<\/p>\n<p>Trump initially asked Chutkan to dismiss his charges entirely on the grounds that the speech cited in the indictment was protected under the First Amendment.<\/p>\n<figure><figcaption>FILE \u2013 Republican presidential candidate former President Donald Trump speaks at a campaign rally March 16, 2024, in Vandalia, Ohio. (AP Photo\/Jeff Dean, File)<\/figcaption><\/figure>\n<p>Trump\u2019s defense attorneys wrote in the motion that the president merely \u201cgave voice\u201d to concerns about widespread election fraud.<\/p>\n<p>\u201cThe First Amendment embraces and encourages exactly this kind of behavior, and therefore states in the clearest of terms that \u2018Congress shall make no law \u2026 abridging the freedom of speech,\u2019\u201d the defense attorneys wrote, stating Smith\u2019s indictment violated that sentiment.<\/p>\n<p>Smith alleged that despite Trump\u2019s closest advisers repeatedly telling him he was wrong, the president peddled prolific unproven claims about the election. The claims included that thousands of dead voters had voted in battleground states and that more ballots were cast than there were voters to cast them. Smith argued that Trump knew he was deceiving election officials and his supporters, who allegedly proceeded to act on his claims by illegally developing alternate slates of electors and rioting at the Capitol.<\/p>\n<p>Chutkan sided with Smith, saying the First Amendment \u201cdoes not protect speech that is used as an instrument of a crime.\u201d<\/p>\n<p>Trump made statements \u201cin furtherance of a crime,\u201d according to the indictment, Chutkan observed, noting how those statements were not protected speech.<\/p>\n<p>However, Trump if the case goes to trial, Trump\u2019s attorneys have made clear they will still attempt to persuade a jury that he was exercising his constitutional freedoms.<\/p>\n<p><strong><a href=\"https:\/\/www.washingtonexaminer.com\/\" target=\"_blank\" rel=\"noreferrer noopener\">CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER<\/a><\/strong><\/p>\n<p>Jonathan Turley, a professor at George Washington Law School, told the <em>Washington Examiner<\/em> that Smith\u2019s allegations must be based on \u201cmore than mere speculation of Trump\u2019s motive\u201d behind his speech.<\/p>\n<p>\u201cHe had every right to call on his supporters to protest at Congress and to support those who were opposing certification,\u201d Turley said. \u201cOn the current evidence, Smith\u2019s case seems not circumstantial but rather conjectural and subjective.\u201d<\/p>\n<\/p><\/div>\n<p><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Former President Donald Trump faces four criminal cases, posing a unique legal challenge before voters determine his return to power. Democrats applaud the accountability, but legal experts worry about the impact on the cases<\/p>\n","protected":false},"author":49,"featured_media":2247386,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"https:\/\/www.washingtonexaminer.com\/wp-content\/uploads\/2024\/02\/AP24004615992643-1024x683.jpg","fifu_image_alt":"","footnotes":""},"categories":[538],"tags":[],"class_list":["post-2247385","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-washington-examiner"],"fifu_image_url":"https:\/\/www.washingtonexaminer.com\/wp-content\/uploads\/2024\/02\/AP24004615992643-1024x683.jpg","_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2247385","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\/49"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=2247385"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2247385\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2247386"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=2247385"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=2247385"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=2247385"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}