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.
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.
