Special Counsel Jack Smith has indicted Donald Trump over January 6 on a slew of charges that appear to encroach on free speech rights. The latest indictment seems to draw on what law professor Jonathan Turley warned about concerning Mr. Smith’s interpretation of criminal statutes: he stretches them into illogical territory. It’s why Smith’s past conviction of former Virginia Gov. Bob McDonnell was tossed out unanimously by the Supreme Court. This Trump indictment could suffer a similar fate.
The talking heads on CNN and MSNBC are loaded with left-wing legal clowns who fail to see that Smith’s charges set a precedent where everyone on the Hill would be jailed. Wall Street Journal columnist Kimberley Strassel took a katana to the reasoning behind the indictment, noting that Barack Obama would have been jailed under the Jack Smith protocol of ‘saying things that I don’t like, so I’ll draw up federal charges’ paradigm:
That’s the biggest problem with Mr. Smith’s latest broadside against Donald Trump, on top of its untested legal theories and evidence of a Justice Department double standard. As former Attorney General William Barr told CNN on Wednesday, “there were reasons not to bring” the case, and among them is “the slippery slope of criminalizing legitimate political activity.”
Take Mr. Trump out of the equation and consider more broadly what even the New York Times calls Mr. Smith’s “novel approach.” A politician can lie to the public, Mr. Smith concedes. Yet if that politician is advised by others that his comments are untruthful and nonetheless uses them to justify acts that undermine government “function,” he is guilty of a conspiracy to defraud the country. Dishonest politicians who act on dubious legal claims? There aren’t enough prisons to hold them all.
Consider how many politicians might already be doing time had prosecutors applied this standard earlier. Both Al Gore and George W. Bush filed lawsuits in the 2000 election that contained bold if untested legal claims. Surely both candidates had advisers who told them privately that they may have legitimately lost—and neither publicly conceded an inch until the Supreme Court resolved the matter. Might an ultimate sore winner have used this approach to indict the loser for attempting to thwart the democratic process?
And why limit the theory to election claims? In 2014 the justices held unanimously that President Barack Obama had violated the Constitution by decreeing that the Senate was in recess so that he could install several appointees without confirmation. It was an outrageous move, one that Mr. Obama’s legal counselors certainly warned was a loser, yet the White House vocally insisted the president had total “constitutional authority” to do it. Under Mr. Smith’s standard, that was a lie that Mr. Obama used to defraud the public by jerry-rigging the function of a labor board with illegal appointments.
What’s the betting someone told President Biden he didn’t have the power to erase $430 billion in student loan debt. Oh, wait! That’s right. He told himself. “I don’t think I have the authority to do it by signing with a pen,” he said in 2021. The House speaker advised him it was illegal: “People think that the president of the United States has the power for debt forgiveness. He does not,” Nancy Pelosi said.
Yet Mr. Biden later adopted the lie that he did, and took action to defraud taxpayers by obstructing the federal function of loan processing—until the Supreme Court made him stop.
While she didn’t go into it in full because that would be a novel, Strassel mentioned Rep. Adam Schiff (D-CA) peddling knowingly false claims about Trump-Russia collusion. Any Democrat who cited or used the Steele Dossier, the basis for the Russian collusion probe, in attacks against Trump or used as reasoning to impeach him is guilty of fraud. They’re not; this is free speech. And Democrats can be wrong. Often, they are. Donald Trump got bad legal advice and espoused opinions that some found disagreeable about the 2020 election. That’s not a crime.