Jack Smith, in his rush to 'get Trump,' has done serious violence to our constitutional order and Bill of Rights.
thefederalist.com
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.
1. Trump’s State of Mind
In the Trump documents case, we’ve already seen how thorny issues of intent can be. There, many of us have argued that, in light of the president’s rights and responsibilities under the Presidential Records Act, it is essentially impossible for Jack Smith to prove that Trump knowingly violated the Espionage Act subsection charged.
2. Criminalizing Political Speech
Others have made this point publicly already, so I won’t belabor it. To put it simply, Jack Smith’s theory of the case necessarily requires criminalizing political speech. This is core, protected activity under the First Amendment, and the legal implications are truly scary for our democracy.
3. Proving Trump’s Specific Intent
Section 241 is a statute that was originally designed to deal with violence against black voters by the Ku Klux Klan, and other similar efforts to deprive people of their constitutional rights. Jack Smith’s use of it here is outrageous on its face, designed to inflame perhaps more than anything else. But there are also serious legal issues that Smith and his team seem to have been willing to ignore in terms of the statute’s applicability to the facts alleged.
4. Proving a Fraud Conspiracy
Section 371 is a statute that criminalizes defrauding the federal government or interfering in lawful functions of government. Its 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 has urged caution throughout the statute’s history that a conspiracy charge relating to the obstruction of governmental functions must be premised on the use of “deceit, craft or trickery, or at least by means that are dishonest,” as was decided in
Hammerschmidt v. United States. “Open defiance” of the law, for example, cannot give rise to a § 371 charge.
5. Misapplication of Obstruction Law
Section 1512 was originally enacted as part of the Sarbanes Oxley Act in 2002, intended to deal with the fallout 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, but it also contains a catchall provision that criminalizes corruptly “obstructing” an official proceeding.
6. Perfectly Timing the Trial for Election Season
As he did with his original indictment in the documents, Jack Smith accompanied his announcement of charges yesterday with a cynical call for a “speedy trial.” More than anything else, Smith’s insistence that these cases that he is bringing should be tried at the height of a presidential election adds fuel to the fire of Trump’s expressed view that the special counsel is waging a political campaign against him, not a valid legal investigation.
www.westernjournal.com
