Conservative and moderate citizens should wish for the conviction of Donald Trump for violating the Constitution on January 6, 2021, if the prosecution can prove actionable fraud, provided that his conviction does not more blatantly violate that same Constitution. But such evisceration of constitutional norms is precisely what prosecutor Jack Smith has in mind.
Smith sees that he can win the prosecution only if he restricts the right of the Defendants to offer evidence in their defense, you know, those annoying due process rights guaranteed by the Fifth and Sixth Amendments of our Constitution. It is becoming apparent, in short, that Smith thinks he can only win if he plays dirty.
The indictment charges that Donald Trump, through false claims of election fraud, including falsely claiming to have “won,” created an “atmosphere of mistrust and anger” and, on that basis, caused his supporters to “obstruct” the certification of Biden’s election as President.
Recently, to keep “irrelevant disinformation” out of trial evidence presented to the jury, Smith moved to prohibit Trump from blaming, among others, the political motives of the prosecution, involvement of the National Guard, covert government agents, the Capitol Hill Police, or of “foreign actors,” or introducing the intelligence community’s assessment of election security. But, we must ask, if the “rioters” were, in fact, motivated by what Smith is claiming to be irrelevant concerns and not “fraud” by Trump, isn’t that pertinent to Trump’s defense?
As the Senate’s bipartisan report showed, long before Trump spoke on January 6, certain bad actors planned on forcing a tunnel at the Capitol. This was known as early as December 15, with a “hair on fire” FBI report to the CHP on January 3. Trump was not involved in this planning, of which he was not told, but Nancy Pelosi’s CHP agents were. Does Smith claim it irrelevant that the CHP had insufficient staffing to control a mostly peaceful crowd?
Indeed, let’s say that Trump could show evidence that much of the violent trespassing was encouraged by undercover government agents (“Ray Epps” et al.) and/or Antifa/BLM (e.g., “John Sullivan”) agents provocateurs. Wouldn’t that be exculpatory evidence? But if Smith gets his way, he can introduce evidence he likes, but not this inconvenient evidence that someone or something other than Trump caused the great commotion that day.
Or what if the now-proven shooting of rubber bullets angered the leaders of a violent tunnel charge and tear gas at protesters by CHP officers? If Smith gets his way, then Judge Chutkan will deny admission of this proof, even though these rogue officers, understandably frightened, reenacted a Kent State/Boston Massacre shooting which was not Trump’s fault, but that of an understaffed Capitol Hill Police. After all, the highly intelligent, bipartisan Senate report re January 6 found that to be the case.
The indictment spells out some clear examples of false claims by the Trump camp, but for the most part, they are the easily dismissed, absurd charges publicized and debunked months before January 6. For example, it was early on falsely claimed that 10,000 dead people voted in Georgia and that 205,000 more voters voted in Pennsylvania than were registered. It was also claimed that Dominion Voting Machines skewed the results, again long earlier disproved. In summary, by January 6, 2021, the wildly false claims that Smith highlighted in the indictment were proven false and not being pushed by any sane person. But these are the false claims that Smith asserts led to the January 6 violence. As we will show below, there were other far more moving assertions of election irregularities than the ones Smith cherry-picks for the indictment. Will he be arguing that these more probative claims are the “irrelevant” types of “disinformation” that Trump cannot put into evidence? It seems like it.
The indictment also alleges that in every “outcome determinative” post-election lawsuit, the Trump forces lost (author’s note: as they should have), an allegation that suggests that Smith will seek to move these decisions into evidence for consideration by a jury which does not understand the legal process, while, it appears, falsely claiming that these decisions settled the winner.
But, still and yet, an engaged citizen may ask, what is wrong with the foregoing? After all, sixty lawsuits failed. Unfortunately for this case, the legal system, and, most importantly, our country, just about everything is wrong about what Smith is attempting. Let us explain.
Smith’s indictment violates what should be a cardinal maxim of white-collar prosecutions, the KISS rule: keep it simple, stupid. His sprawling indictment covers elections in five states with over 30 million voters. So, lots of luck keeping this trial brief, which can be accomplished only if the Court, at Smith’s urging, prohibits relevant evidence.
As Trump would admit, Biden “won” these five contested swing states per the procedures actually followed, and, yes, as has been discussed ad nauseum, a courtroom is not a proper forum to relitigate an election. A court Is not equipped to call millions of witnesses on an emergency basis, which is precisely why our election systems must be secure and reliable. But the Trump forces, with some verisimilitude, could claim in good faith that Trump “won” if only properly cast ballots were counted. Smith, in short, plays a shell game when he avers that Trump falsely asserted he “won” states he didn’t win. No one was defrauded into believing, nor did Trump claim, that he actually “won” as certified by the five states, as opposed to having “won” if only valid votes were counted.
So, in claiming Trump committed fraud, Smith’s indictment itself commits fraud. He knows very well that Trump never claimed to have “won” as the disputed states had certified. And if Smith is to be fair to an indicted Defendant, which he is sworn by oath to do, he knows that the Trump camp had claimed wrongs not so clearly dismissible as the “dead voter” or Dominion Voting Machine canards. There were, in short, valid objections to a poorly run election.
Just on the narrow issue of Trump’s alleged mens rea, or fraudulent intent, there is plentiful evidence that Trump may have probably or arguably won in each of these five states if only valid ballots were counted and that Trump was sincere in this belief.
Given what should be the leeway afforded Trump to defend himself, along with multiple co-conspirators, the trial to which Smith gave architecture in the sprawling indictment should, underline should, last five months or more. But Smith is trying to make his claims, while squelching Trump’s defense of them, so that he can get this conviction in weeks, not months. Let’s see if an Obama-appointed judge can resist this temptation and be fair to a defendant she may not, understandably, love.
Here are a few examples of serious election concerns, not sufficient to overturn the election via limited court review but sufficient to induce a reasonable belief that probably or arguably Trump really won if only valid votes were counted. These irregularities should be admissible, but Smith appears to urge Judge Chutkan to prohibit them.
The hapless Georgia Secretary of State Brad Raffensperger had rolled over for Stacey Abrams, making it virtually impossible to invalidate clearly mismatched ballot signatures. Thus, while in 2016, 6.4% of Georgia mail-in ballots were invalidated, in 2020, only .36% in the state and, stunningly, only .05% in Fulton County were invalidated. After 10:30 p.m., when all were told that the vote counting had stopped in Fulton County, 23,487 votes were counted, 23,000 of them for Biden. Trump lost Georgia by 12,000 votes. So, could he, in good faith, believe that he won Georgia? Of course.
In Wisconsin, mail-in voting drop boxes were illegal, but what the heck, they were allowed. Disqualifying all 20,000 dropbox votes, which by a 4-3 vote the Democratic Wisconsin Supreme Court failed to do, would have won the state for Trump. And, oh yes, nursing homes around Milwaukee had a 100% turnout in 66 of 91 homes and 95% or over in the rest, the vast majority of votes going to Biden.
In Arizona, 9,800 migrants, per a litigation settlement, were allowed to vote without proof of citizenship, yielding an 8,000-vote majority for Biden; 9,000 overseas voters, an abnormally high number, voted in Maricopa County, Arizona, which usually skews conservative, with 90% voting for Biden. 35,000 allegedly fraudulently injected votes in Pima County, Arizona (per a reliable whistleblower) caused eyebrow-raising statistics. Those wards with unusually high turn-out, approaching 100%, “fishtailed” against Trump, as he ran behind the ticket, whereas in normal turnout wards of 70-80%, Trump ran ahead of the ticket, not behind, as in the higher turnout “fishtail” districts. Arizona had a 10,000-vote margin for Biden.
Reversals in just these three states, with only a 40,000 Biden vote margin, would have tied Trump and Biden in electoral votes, with Congress giving the election to Trump.
The “fraud” Smith seeks to prove involves one candidate “petitioning the government for redress of grievances,” a right guaranteed under the First Amendment. And in defense, Trump seeks due process under the Fifth and Sixth Amendments to a full defense.
In Smith’s exuberance to do Biden’s bidding to prove Trump a criminal, he now faces a dilemma. If he allows Trump a proper defense, he will allow Trump the forum he has lacked to show that he probably or likely should have won and that the riots were not motivated by fraud. So, to prove Trump wrong, Smith must deny Trump his rights under the Constitution to present a full-throated, relevant defense. Accordingly, we pose this question to Trump haters, and as well to Judge Chutkan: do you want to convict Trump of violating the Constitution by your violating the Constitution?
John D. O’Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the author of the books, Postgate: How the Washington Post Betrayed Deep Throat, Covered Up Watergate and Began Today’s Partisan Advocacy Journalism and The Mysteries of Watergate: What Really Happened.