The latest lawfare missile lobbed at Donald Trump by his successor and chief political opponent’s Justice Department strikes at our most fundamental rights: To speak freely, petition our government for redress of grievances, and have lawyers to defend us.
The four-count indictment, wherein Special Counsel Jack Smith seeks to have his cake and eat it too by hanging the Capitol Riot around Trump’s neck without charging him for it, is a tool of political warfare masquerading as an instrument of justice.
Let me speak to the case on its merits to illustrate how illegitimate it is.
The premise is that Donald Trump didn’t really believe he lost the 2020 presidential election.
So when he used every available means to contest it – pleading with states to run audits and recounts and pursue allegations of fraud and irregularities, filing lawsuits, preparing alternate slates of electors and seeking to halt the certification of the vote so states could comprehensively review the claims of election issues, while coordinating with lawyers in exhausting every possible remedy – that that effort was fraudulent, a criminal conspiracy.
To make this case, Special Counsel Smith tortures laws having nothing to do with contesting an election that millions of Americans were skeptical of in pursuit of what amount to thought crimes.
Just consider the charges Smith levels at Trump on their face.
One count is for conspiracy against rights – specifically “the right to vote, and to have one’s vote counted.”
Apparently, Smith believes the effort to pursue claims of fraudulent or illegally cast votes – which would dilute and in effect disenfranchise lawful voters – constitutes an assault on voting rights.
Seeking to ensure the integrity of the vote equals conspiring against the vote?
Beyond that, according to the DOJ, this law, Title 18 Section 241 “is used in Law Enforcement Misconduct and Hate Crime Prosecutions.”
So it’s totally inapt.
Let’s look at two of the three remaining counts: obstruction of an official proceeding and conspiracy to obstruct an official proceeding.
Know where the underlying law comes from?
It’s part of Sarbanes-Oxley, the legislation passed after the Enron accounting scandal.
Title 18 Section 1512 of the U.S. code, according to the DOJ, deals with “tampering with victims, witnesses or informants.”
Section c, where Trump faces charges, deals with “corruptly” “alter[ing], destroy[ing], mutilat[ing], or conceal[ing] a record, document, or other object…with the intent to impair the object’s integrity or availability for use in an official proceeding; or – and this is where Smith is charging Trump, “otherwise obstruct[ing], influenc[ing], or imped[ing] any official proceeding.”
Before January 6 this law had never been applied to political protesters.
But the Justice Department shoehorned it to slap Capitol breach defendants with a felony that carries a sentence of up to 20 years.
Judges have been divided on whether this evidence-focused charge can even be applied to political rioters. It may go before the Supreme Court.
To make Smith’s case work, he’d have to link Trump’s words – like cheering on protesters heading to the Capitol “peacefully and patriotically” to back the legislators objecting to the certification of the election – and actions including authorizing substantially more security before J6 – to show that he owned the Capitol Riot, and that the actions of rioters constituted “corrupt” acts to “obstruct an official proceeding” that he intended to happen.
And note that Smith didn’t charge Trump with inciting an insurrection or seditious conspiracy.
So riddle me this: Given what I just detailed, Smith’s gonna argue that Trump tried to obstruct an official proceeding that constituted his last chance to challenge the 2020 election?
That’s an awful lot of cartwheels necessary to get to the charges he’s seeking.
Finally there’s the lead charge of “conspiracy to defraud the United States.”
Set aside whether because psychic Jack Smith believes Trump believed he lost – largely based on what officials around Trump were telling him, as if that’s supposed to mean something – that therefore his election challenge was the fraudulent fruit of this poisonous tree.
The Supreme Court spoke on the matter of fraud just months ago. In Ciminelli v. U.S., writing for a unanimous court, Justice Clarence Thomas said this: “the federal fraud statutes
criminalize only schemes to deprive people of traditional property interests.”
Now the DOJ has also said the law is “designed and intended to protect the integrity of the United States.”
Of course, Trump would argue that seeking to ensure the legitimacy of a presidential election by exhausting all possible means was precisely about protecting that integrity.
So given all that, ask yourself, if you were a fair-minded federal prosecutor serving at the pleasure of one president, if you would pursue his predecessor and leading political opponent – for conduct and over issues already addressed by the legal and political processes, including an impeachment – as Jack Smith does.
Would you slap the predecessor and leading opponent with an indictment, as you’ve done before, days after damaging news about the conduct of the current president, stretching and twisting laws, when the crimes are not clear cut, and there’s no precedent – where here the chill over political speech, challenging elections, and providing counsel for challengers, is obvious, all while definitionally interfering in the election?
And ask yourself, if these are the new standards, wouldn’t every party in power be tempted to weaponize the justice system accordingly to punish their political enemies?
We are being desensitized to and witnessing the normalizing of show trials in this country that damage to the fundamental rights of us all, and the integrity of the system itself – under cover of justice.
That’s the real fraud here.
