We’ve reported on some of the legal opinions in the wake of the indictment that Special Counsel Jack Smith dropped against former President Donald Trump this week. Neither George Washington law professor Jonathan Turley nor former federal prosecutor Andy McCarthy thought much of it. They both pointed out the flaws, including that it was going after free speech and stretching the law into a pretzel in the process. McCarthy even described Smith’s statement on the matter as “demagogic.”
However, Alan Dershowitz made some other interesting points on multiple media programs.
This video covers what Dershowitz said to Fox’s Brian Kilmeade on the matter.
But the main point of principle that I really want to get over is that, and this applies to both parties, the leading candidate against the incumbent president should never be prosecuted by the attorney general of the president, of course, unless the case against him is overwhelming and beyond any dispute.
The “Nixon standard” was what he called it. Indeed. A banana republic is another way of looking at it.
He said none of the indictments have come up to that standard, except perhaps the classified documents case, but he thought that failed as well.
It’s the paper technical crime. So I just don’t think that they have it, enough against this candidate who’s now running 44 to 44 in the New York Times poll, to use the criminal justice system to interfere with the election.
Dershowitz noted that Trump had a right to express his opinion about the election and legally challenge the results. He noted that the question of alternate slates of electors had come up before in history. He pointed to 1960 and 1876. Yet, that didn’t result in anyone trying to criminalize such efforts. He said a Hawaii court even said that was okay, referencing the 1960 case.
The indictment is trying to criminalize speech and “lies.”
But as Dershowitz explained, Jack Smith was in trouble there, that this was a “blatant lie.”
But he describes the speech in the indictment, and deliberately and willfully leaves out the keywords of the speech, namely that the president told his people to protest peacefully and patriotically. By leaving out those words, it’s a lie by omission.
That of course kind of blows holes in this whole talking point about what was happening on Jan. 6. It’s something that a lot of the media also tends to leave out when describing what happened that day. But it’s one thing for the media to do it; it’s another if that’s not being told to the grand jury by the Special Counsel. That’s a problem.
Dershowitz even suggested that Smith could be indicted (although he wasn’t recommending it). He made that point to say that the indictment was so broad, it could encompass all kinds of other conduct.
I wouldn’t hold your breath, though, on that one in the two-tiered system; that’s not likely to happen. But Dershowitz’s point was how dangerous this was, trying to go after your administration’s political opponent and a former president for speech.
In an interview with Larry Kudlow, Dershowitz also pointed out how it could be dangerous to the Sixth Amendment as well.
[T]his is a very, very dangerous indictment, dangerous to the First Amendment and also dangerous to the Sixth Amendment because it directly goes after Trump’s lawyers, names them as unindicted coconspirators without giving their names, but basically says they’re criminals for giving him advice on how to challenge the election.”
Indeed, talk about a slippery slope and we’re well down it with this indictment.