On Tuesday, former and potentially future President Donald Trump was indicted for the third time, this time to do with charges relating to the events on and leading up to January 6, 2021. There have been considerable concerns with the politically-motivated charges brought by Special Counsel Jack Smith, especially when it relates to Trump's comments and political activity being protected under the First Amendment. Attorney and Professor Alan Dershowitz has analyzed and discussed the indictment at length, and how believes that it could "collapse," especially since it doesn't meet the necessary high standards. Further, he also believes that a guilty sentence for Trump would likely be overturned by the U.S. Supreme Court.
Dershowitz spoke to Newsmax's Greta Van Susteren on Tuesday, during which he expressed concerns about the standards, especially considering that it is so likely there will be a conviction out of D.C.
Further, with Trump seen as the frontrunner in the Republican presidential primary to run against President Joe Biden, there are real concerns about election interference for the 2024 election.
"It doesn't satisfy the high standard that should be required when you're going after your political opponent. That's banana republic, when you go after your political opponents by indicting them... and denying your right to vote for him or against them," Dershowitz said about the case.
"The charge itself of classified material doesn't meet the standard of the same justice for all, because it doesn't seem all that different from the allegations made against other people of the Democratic Party," Dershowitz explained. "So, so far, I've seen nothing that warrants prosecuting the man who is now in a 44-44 poll tie with the incumbent president, and trying to influence the outcome of the election through prosecution."
RealClearPolitics (RCP) indeed has Biden up with a spread of just +0.9, with 44.9 percent of the vote to Trump's 44 percent.
Dershowitz spoke to Fox News' Sean Hannity as well, during which he addressed what happens in the strong likelihood that Trump is convicted in the Circuit Court, but that this will not be the final word.
"I think he may lose in the Court of Appeals for the D.C. Circuit, but he will probably win in the United States Supreme Court, if they grant review," Dershowitz offered, "and they should grant review," since "when you have the president of the United States and his people going after his opponent in a political election, it has to be beyond reproach. It has to be without any problem, it has to be the strongest case in history. This doesn't meet this standard."
Alan Dershowitz says Trump conviction will be overturned by the Supreme Court pic.twitter.com/qeo1YN8JVg
— The Post Millennial (@TPostMillennial) August 2, 2023
Dershowitz also posted his thoughts to Substack on Wednesday, "For all you Trump haters popping champagne over this dubious indictment, here's EXACTLY why it may collapse," where he issued several warnings.
As Dershowitz wrote:
Have no doubt, corrupting the U.S. justice system to punish a former president and current candidate nudges the country ever closer to tribalism, chaos and collapse.
If the attorney general appointed by the incumbent president authorizes the prosecution of the president's chief election rival, the evidence of a serious crime should be overwhelming.
His guilt should be clear beyond doubt, so as to avoid any reasonable suspicion that the prosecution was motivated, even in part, by partisan consideration.
The paradigmatic 'gun' must indeed be 'smoking'.
Delving specifically into the indictment brought by Smith, Dershowitz emphasizes how skeptical he is throughout, writing with original emphasis:
The current indictment involves far more serious accusations, but the evidence seems speculative.
In order to establish the underlying charges, the government would have to prove beyond a reasonable doubt that Trump himself actually knew and believed that he had lost the election fair and square.
That he intended to subvert the will of the people.
I doubt they can prove that.
I did not believe that the government would bring this indictment unless it had corroborated evidence that Trump had told people that he knew he had been defeated and was challenging the results for fraudulent and corrupt purposes.
But from what I have read and heard; they don't appear to have any such evidence.
...
I think he is wrong, but it's not what I or the grand jurors think: it's what Trump himself believed.
If the government fails to prove Trump's state of mind beyond a reasonable doubt, the indictment against him may well backfire - politically.
He may gain rather than lose support among independents and marginal supporters who oppose the weaponization of our criminal justice system.
Dershowitz also lays out further issues with the case under Smith:
But perhaps, most notably, Smith's case against Trump is novel, untested and unique.
It may collapse under its own weight.
Our Constitution prohibits ex post facto prosecutions – that is prosecutions that are not based on clear rules easily knowable to defendants at the time of the alleged offenses.
Put simply, the law must be clearly established by firm precedents. There are few in this indictment.
As Thomas Jefferson once put it: the criminal law must be so clear that the average person can understand it if he 'reads it while running.' The spirit, if not the letter of this prohibition is violated when statutes are stretched and precedents are ignored.
Smith is charging Trump under a Reconstruction era law, adopted in 1870, that makes it a crime to 'conspire to injure, oppress, threaten, or intimidate any person' exercising their Constitutionally protected rights, including the right to vote.
The provision was intended to aid African American citizens emerging from the horrors of slavery. But it has not been used to prosecute someone for contesting the legitimacy of an election.
If it were it could have been employed against House Democrats, who challenged Trump's 2016 election victory, citing supposed voter suppression and Russian interference.
Of course, it should not have.
Dershowitz again here too discussed the possibility of how the Supreme Court could overturn the conviction. "If that motion fails, a conviction is virtually assured, but it is likely that that conviction will be scrutinized carefully on appeal by the Circuit Court and Supreme Court," he wrote. "No one can ever predict the outcome of an appeal, but affirmance is far from assured.:
In summing up his concerns about the case, Dershowitz again stressed that the standard just does not appear to have been met, and thus the attorney general should not have even approved it, "based on speculative nature of its legal foundation and the absence of smoking-gun evidence."
"No one is above the law and every defendant must be treated equally, but the reality is that when the potential defendant is the candidate running most strongly against the incumbent president, the attorney general should be certain that the case is strong," he added.
Dershowitz also shared his thoughts in-depth in "The Dershow," with regards to the far-reaching consequences the indictment could have, calling it "one of the strangest documents I've ever read," regarding it as "open-ended and broad."
Smith himself left out Trump's key words on January 6 that he wanted people to "protest peacefully and patriotically," which Dershowitz stressed bring Trump within the First Amendment. Dershowitz pointed out that Smith "deliberately, willfully, and with malice" left out these key words, thus "doctoring the speech."
Annunciating his words for emphasis, Dershowitz pointed out that "what you cannot argue about is that a decent prosecutor, an honest lawyer doesn't leave those words out of the indictment! And that's what Jack Smith did. He left those words out of the indictment."
When it comes to such an obscure theory, that lying could be criminalized, Dershowitz pointed out, Smith could himself be indicted for lying. He could also be held liable for, by indicting Trump, threatening his First Amendment rights.
"Now obviously Jack Smith's not gonna be indicted," Dershowitz made clear. "I just make that point to illustrate how open-ended and dangerous this indictment is."
"It's the first indictment I know of," Dershowitz explained, "that really turns political lies... into crimes." He pointed out that members of Congress and past presidents have been dishonest, that "it's even the key to electability."
"The idea that you make lies a crime when they're not under oath, when they're part of a political campaign or a campaign to remain in office, just stretches the Constitution beyond belief and stretches and shrinks the First Amendment," Dershowitz emphasized, "shrinks the First Amendment to nothingness."
When it comes to the important issue of this case, Smith will have to prove "malice," which Dershowitz explained is difficult since it involves getting into Trump's mind to show that he acted with malice and prove it with a reasonable doubt in criminal cases that Trump knew and believed he lost the electron.
Dershowitz also offered a powerful sentiment about what's in Trump's mind and about doubt. "I'm not going to probe his unconscious and see whether deep in the recesses of his mind he had doubts about it. Probably everybody has doubts about it. When I argue a case I have some doubts in the back of my mind," Dershowitz shared, also suggested that religious leaders have their own doubts when preaching, even when they're selling the idea.
Bringing it back to politics, Dershowitz pointed out that there's Election Day, where the American people often favor more honest candidates.
The matter also highlights partisan differences. "We don't have that today," Dershowitz pointed out. "Today the country is as deeply divided over this indictment as it is over some other important issues of life and of America, this indictment doesn't help."
Dershowitz also once more addressed his concerns with venue. "The indictment should never, ever have been brought in the District of Columbia," he stressed. "That's where the alleged crime was committed," Dershowitz acknowledged, "but the prosecutor himself should have recognized that he can't get a fair trial in the District of Columbia, he can't get a jury of his peers."
Dershowitz stressed even further that "it's the most one-sided district of any district in the United States, and then they put him before a judge who has demonstrated anti-Trump bias, pro-Democratic bias, and her whole background is in Democratic law and politics, and she has shown disdain for people who protested on January 6, and apparently has some of the longest sentences." He was speaking about Judge Tanya Chutkan, who, as Mia covered at length, donated to President Barack Obama. Even when prosecutors didn't ask for it, Chutkan sentenced defendants to prison time, thus her reputation for being so tough.
Dershowitz pointed that Trump's legal team will thus file to recuse the judge and move it to a different district, perhaps to Virginia or West Virginia.
When it comes to the indictment itself, Dershowitz made clear that "the case as to be the strongest case in history," especially since as he had pointed out "if you're gonna indict, if you're the attorney general, the attorney general who appointed the special counsel, is going to authorize the indictment of the man who is the leading candidate to run against your boss, the president, the man who appointed you as attorney general, the case has to be the strongest case in history," and "a case that everybody, Republicans, Democrats, Independents say 'wow, this case is really, really, really strong.'"
Trump will be arraigned at the E. Barrett Prettyman Courthouse on Thursday afternoon.
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— Alan Dershowitz (@AlanDersh) August 3, 2023