Six Ways Jack Smith’s Latest Indictment Is Legally Flawed And Politically Shady

[Kamaji]

6 Ways Jack Smith’s Latest Indictment Is Legally Flawed And Politically Shady

Jack Smith, in his rush to ‘get Trump,’ has done serious violence to our constitutional order and Bill of Rights.

BY: WILL SCHARF
AUGUST 03, 2023

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.

The Indictment
Smith’s indictment contains four counts against Trump.

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Having read the indictment, having followed Jan. 6-related cases closely, having read extensive news coverage, and having spoken to others with experience in this area of the law, I do not believe any of these charges can fairly be proven beyond a reasonable doubt in front of a fair judge and jury. Additionally, I expect that were this case to reach the Supreme Court, the court would reject Smith’s theories of liability on all or at least some of these counts, as it did unanimously with his prosecution of former Virginia Gov. Bob McDonnell.

Smith and his team did a real disservice to the cause of justice by bringing this indictment.

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.

Here, we have a similar issue. For all four of these charges, Smith needs to prove beyond a reasonable doubt that Trump knew his claims about election integrity were false, and that he knew the legal theories his team advanced were not viable.

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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.

Is any public challenge to a certified federal election a criminal act? In Jack Smith’s telling, the answer is probably yes. At what point do election challenges become criminal? Based on Jack Smith’s theory of the case, the answer to that is entirely unclear, meaning that the very fact that this indictment was brought may have a deeply chilling effect on protected speech in years to come.

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Source:  https://thefederalist.com/2023/08/03/jack-smiths-latest-indictment-is-legally-flawed-and-politically-suspect/