I can imagine the sound of champagne bottles popping from Martha’s Vineyard to Washington D.C., as President Donald Trump‘s haters celebrate this third, historic federal indictment.
If only they were able to drop their partisan blinders and see the grave damage this legal lunacy is doing to our country!
On Tuesday, U.S. Special Counsel Jack Smith revealed felony charges against the former president for allegedly subverting the will of the American people and attempting to overturn the results of an election.
Yes, Trump’s behavior following his 2020 loss was wrong. But was it criminal?
Not on the basis of what I’ve seen thus far.
Have no doubt, corrupting the U.S. justice system to punish a former president and current candidate nudges the country ever closer to tribalism, chaos and collapse.
If the attorney general appointed by the incumbent president authorizes the prosecution of the president’s chief election rival, the evidence of a serious crime should be overwhelming.
His guilt should be clear beyond doubt, so as to avoid any reasonable suspicion that the prosecution was motivated, even in part, by partisan consideration.
The paradigmatic “gun” must indeed be “smoking.”
I call this the “Nixon standard,” under which the guilt is so evident that even the defendant’s political allies — and certainly less sectarian independents—are satisfied that it is fair.
That admittedly daunting but entirely appropriate standard has not been met by any of the three indictments currently pending against Trump, who stands tied in recent polls against President Joe Biden.
Manhattan District Attorney Alvin Bragg’s indictment of Trump for falsely reporting the payment of hush money to adult firm star Stormy Daniels is scandalously inept. The legal contortions Bragg performed to criminalize a possibly immoral, yet perfectly legal, pay off are too convoluted to recount here.
Evidence related to Trump’s alleged illegal retention of classified materials at Mar-a-Lago are strong, but the supposed crime itself is rather technical and relatively minor. Hillary Clinton, who stored highly sensitive government documents on her “home brew” server, never faced federal charges, neither did President Biden, Vice President Pence or Bill Clinton’s former National Security Advisor, Sandy Berger.
Why, then, charge the candidate who is in a virtual tie with the incumbent against whom he is running?
The current indictment involves far more serious accusations, but the evidence seems speculative.
In order to establish the underlying charges, the government would have to prove beyond a reasonable doubt that Trump himself actually knew and believed that he had lost the election fair and square.
That he intended to subvert the will of the people. I doubt they can prove that.
I did not believe that the government would bring this indictment unless it had corroborated evidence that Trump had told people that he knew he had been defeated and was challenging the results for fraudulent and corrupt purposes.
But from what I have read and heard; they don’t appear to have any such evidence.
When his son-in-law Jared Kushner was summoned before the grand jury, it was widely expected that he might provide that smoking gun, but he apparently said the opposite: that Trump actually believed he had won.
Others who spoke to Trump during the relevant time period also believe that he was persuaded that the election had been stolen.
I think he is wrong, but it’s not what I or the grand jurors think: it’s what Trump himself believed.
If the government fails to prove Trump’s state of mind beyond a reasonable doubt, the indictment against him may well backfire — politically.
He may gain rather than lose support among independents and marginal supporters who oppose the weaponization of our criminal justice system.
But perhaps, most notably, Smith’s case against Trump is novel, untested and unique.
It may collapse under its own weight.
Our Constitution prohibits ex post facto prosecutions — that is prosecutions that are not based on clear rules easily knowable to defendants at the time of the alleged offenses.
Put simply, the law must be clearly established by firm precedents. There are few in this indictment.
As Thomas Jefferson once put it: the criminal law must be so clear that the average person can understand it if he “reads it while running.” The spirit, if not the letter of this prohibition is violated when statutes are stretched and precedents are ignored.
Smith is charging Trump under a Reconstruction era law, adopted in 1870, that makes it a crime to “conspire to injure, oppress, threaten, or intimidate any person” exercising their Constitutionally protected rights, including the right to vote.
The provision was intended to aid African American citizens emerging from the horrors of slavery. But it has not been used to prosecute someone for contesting the legitimacy of an election.
If it were it could have been employed against House Democrats, who challenged Trump’s 2016 election victory, citing supposed voter suppression and Russian interference.
Of course, it should not have.
But prosecutor Jack Smith has a history of bringing speculative cases.
He won a corruption conviction against former governor of Virginia, Robert McDonnell, in 2014 only for it to be overturned by the U.S. Supreme Court in a unanimous 8-0 decision.
The Court concluded that there was no explicit proof of the charges and warned that “the uncontrolled power of criminal prosecutors is a threat to our separation of powers.’
Yes, Smith is known for his creativity, but creativity has no proper role in the criminal justice system, especially when it comes to prosecuting political opponents.
Prosecutor Smith is probably counting on the fact that a District of Columbia jury will be comprised primarily of anti-Trump citizens, because the district is overwhelmingly Democrat and only a tiny percentage of potential jurors voted for him in the last election.
That is why Trump’s lawyers will certainly move for a change of venue, perhaps to Virginia which is far more purple than the neighboring District.
If that motion fails, a conviction is virtually assured, but it is likely that that conviction will be scrutinized carefully on appeal by the Circuit Court and Supreme Court.
No one can ever predict the outcome of an appeal, but affirmance is far from assured.
The bottom line is that the attorney general should not have approved this indictment, based on speculative nature of its legal foundation and the absence of smoking-gun evidence.
No one is above the law and every defendant must be treated equally, but the reality is that when the potential defendant is the candidate running most strongly against the incumbent president, the attorney general should be certain that the case is strong.
This indictment and the evidence on which it is apparently based does not seem to meet that standard.
Long after the champagne buzz wears off, America will only be left with a constitutional hangover.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Price of Principle: Why Integrity Is Worth The Consequences. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast. This piece has been republished from the Alan Dershowitz Newsletter.
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