I can imagine the sound of champagne bottles popping from Martha’s Vineyard to Washington DC as President Donald Trump’s haters celebrate this third, historic federal indictment.
If only they could drop their partisan blinkers and see the serious damage this legal madness is doing to our country!
On Tuesday, US special prosecutor Jack Smith announced charges against the former president for allegedly subverting the will of the American people and attempting to overturn the results of elections.
Yes, Trump’s behavior after his 2020 loss was wrong. But was it criminal?
Not based on what I’ve seen so far.
Have no doubt, corrupting the US justice system to punish a former president and current candidate is driving the country ever closer to tribalism, chaos and collapse.
If the sitting president’s appointee attorney general authorizes the prosecution of the president’s main election rival, the evidence of a serious crime should be overwhelming.
His guilt must be clear beyond doubt, so as to avoid any reasonable suspicion that the prosecution was motivated, even in part, by partisan considerations.
Indeed, the paradigmatic ‘gun’ must be ‘smoking’.
I call this the “Nixon standard,” according to which guilt is so clear that even the defendant’s political allies—and certainly less sectarian independents—are convinced it’s fair.
I can imagine the sound of champagne bottles popping from Martha’s Vineyard to Washington DC as President Donald Trump’s haters celebrate this third, historic federal indictment.
Yes, Trump’s behavior after his 2020 loss was wrong. But was it criminal? Not based on what I’ve seen so far
That admittedly daunting but entirely appropriate standard has not been met by one of three charges currently pending against Trump, who is tied with President Joe Biden in recent polls.
Manhattan District Attorney Alvin Bragg’s indictment against Trump for falsely reporting the payment of hush money to adult company star Stormy Daniels is outrageously inept. The legal contortions Bragg pulled off to criminalize a potentially immoral, but perfectly legal reward are too complex to recount here.
Evidence regarding Trump’s alleged illegal holding of classified material at Mar-a-Lago is strong, but the alleged crime itself is rather technical and relatively minor. Hillary Clinton, who kept highly sensitive government documents on her “home brew” server, never faced federal charges, nor did President Biden, Vice President Pence, or Bill Clinton’s former national security adviser, Sandy Berger.
So why sue the candidate who is in virtual affiliation with the incumbent he is up against?
The current indictment contains much more serious allegations, but the evidence seems speculative.
To establish the underlying allegations, the administration would have to prove beyond a reasonable doubt that Trump himself actually knew and believed he had lost the election fair.
That he meant to undermine the will of the people.
I doubt they can prove that.
I didn’t believe the government would bring this charge unless it corroborated evidence that Trump had told the people he knew he was defeated and that he was contesting the results for fraudulent and corrupt purposes.
But from what I’ve read and heard, they seem to have no such evidence.
When his son-in-law Jared Kushner was subpoenaed before the grand jury, he was widely expected to provide that smoking gun, but apparently he said the opposite: that Trump actually thought he won.
Others who spoke to Trump at the relevant time also believe he was convinced the election was stolen.
I think he’s wrong, but it’s not what I or the grand jurors think: it’s what Trump himself believed.
If the administration fails to prove Trump’s state of mind beyond a reasonable doubt, the charges against him could backfire politically.
He can gain support rather than lose among independents and fringe supporters who oppose the weaponization of our criminal justice system.
Manhattan District Attorney Alvin Bragg’s (above) indictment of Trump for falsely reporting the payment of hush money to adult firm star Stormy Daniels is outrageously inept
(Above) Alan Dershowitz is an attorney, Harvard Law School professor, and author of “Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law.”
But perhaps, notably, Smith’s case against Trump is new, untested, and unique.
It can collapse under its own weight.
Our Constitution prohibits ex post facto prosecutions – that is, prosecutions that are not based on clear rules easily known to the accused at the time of the alleged crimes.
Simply put, the law must be clearly established by established precedents. There are few in this indictment.
As Thomas Jefferson once said, criminal law should be so clear that the average person can understand it if they “run through it.” The spirit, if not the letter, of this prohibition is violated when statutes are stretched and precedents ignored.
Smith is suing Trump under a Reconstruction-era law passed in 1870 that makes it a crime to “conspire to injure, oppress, threaten, or intimidate any person” by exercising their constitutionally protected rights , including the right to vote.
The provision was designed to help African American citizens emerge from the horrors of slavery. But it has not been used to prosecute anyone for contesting the legitimacy of an election.
If so, it could have been used against House Democrats, who are challenging Trump’s 2016 election victory, citing alleged voter suppression and Russian interference.
Of course it shouldn’t.
But prosecutor Jack Smith has a history of speculative cases.
He won a 2014 corruption conviction against former Virginia Governor Robert McDonnell, but was overturned by the U.S. Supreme Court in a unanimous 8-0 decision.
The Court concluded that there was no explicit evidence of the allegations and warned that “the unchecked power of criminal prosecutors threatens our separation of powers.”
Smith is suing Trump under a Reconstruction-era law passed in 1870 that makes it a crime to “conspire to injure, oppress, threaten, or intimidate any person” by exercising their constitutionally protected rights , including the right to vote.
Smith received a 2014 corruption conviction against former Virginia governor Robert McDonnell (above, center), but was overturned by the U.S. Supreme Court in a unanimous 8-0 decision.
Yes, Smith is known for his creativity, but creativity plays no role in the criminal justice system, especially when it comes to prosecuting political opponents.
Prosecutor Smith is likely counting on a District of Columbia jury to consist mostly of anti-Trump citizens because the district is overwhelmingly Democrat and only a small percentage of potential jurors voted for him in the last election.
That’s why Trump’s lawyers will certainly move for another location, perhaps to Virginia, which is much more purple than the neighboring district.
If that motion fails, a conviction is all but assured, but it is likely that conviction will be carefully examined on appeal by the Circuit Court and Supreme Court.
No one can ever predict the outcome of an appeal, but confirmation is far from certain.
The bottom line is that the Attorney General should not have approved this charge, based on the speculative nature of the legal basis and the lack of fuming evidence.
No one is above the law and every defendant should be treated equally, but the reality is that when the potential defendant is the candidate who stands up most strongly against the sitting president, the Attorney General has to be sure the case is strong.
This charge and the evidence on which it is apparently based do not appear to meet that standard.
Long after the champagne buzz has subsided, America will only have a constitutional hangover.
Alan Dershowitz is an attorney, Harvard Law School professor, and author of Get Trump: The threat to civil liberties, due process and our constitutional rule of law’