Attorney and Harvard Law Professor Alan Dershowitz, who also happens to be a Democrat who's voted against Donald Trump multiple times, has not shied away from sharing what he really thinks about Special Counsel Jack Smith and the indictments he's brought against the former and potentially future president. Dershowitz has been sharing his expert opinion from the start, and the developments keep on coming, especially this week, as Smith is looking to get the U.S. Supreme Court involved.
As Spencer covered, Smith asked the Court to rule on Trump's immunity in charges he's bringing regarding the events on and leading up to January 6, 2021, as well as Trump's handling of classified documents. "By asking the Supreme Court to rule on the issue, Smith is preempting what was likely to be a question asked by Trump on appeal if he ended up convicted," Spencer offered in his piece.
U.S. District Court Judge for the District of Columbia Tanya Chutkan, who's overseeing the January 6 case, put a hold on it as the Supreme Court engages in an expedited review, which Katie covered Wednesday afternoon. The trial had been set for March 4, the day before the Super Tuesday nominating contests, though this development could delay that.
Dershowitz certainly made headlines in August when he spoke about how the High Court is likely to end up ruling on any convictions Smith gets and overturning those hypothetical convictions. It's worth reminding that a 2014 conviction Smith achieved against former Republican Virginia Governor Bob McDonnell was overturned in 2016 via a unanimous decision by the Court. Dershowitz even pointed out that the indictment regarding the January 6 case was so "open-ended and dangerous" that Smith himself could be indicted for it. As we covered at the time:
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."
More recently, Dershowitz spoke to Maria Bartiromo on Fox Business's "Mornings With Maria." He called it "remarkable that somebody like Smith would appeal a win! He won the issue about immunity, and then he appealed his win," Dershowitz shared. He went on to highlight how obscure he found the move to be, sharing how "in 60 years of doing more appeals than probably any private lawyer in America, I've never seen a prosecutor win in the trial court and then appeal."
Dershowitz made similar remarks when he spoke to Forbes in a video clip posted on Friday, stressing "it's a bizarre application," especially since Smith won at the lower level, at the appeals court, which had indicated Trump had no immunity. "No one can predict how the Court can come down," Dershowitz added, especially since it's not a liberal versus conservative issue.
Speaking with Bartirimo, Dershowitz also repeated a point he's made before, which is that he is certain that Smith will get a conviction, noting "the betting odds are probably 100 to 1 in favor of him getting a conviction" in the District of Columbia, which Dershowitz described as "a jurisdiction where 90 some odd percent of the people hate Donald Trump."
"He wants to get a conviction down and dirty before the election, knowing it may very well be reversed after the election, but it will be too late," Dershowitz added about Smith, stressing, "This really does constitute a form of election interference, denying us the public the right to vote against [Trump] or for him without interference by a criminal trial."
Dershowitz, a Democrat who votes Democratic, made the point Republicans have made about the weaponization of the Biden administration's Department of Justice (DOJ), especially when it comes to going after Trump, President Joe Biden's chief political rival. He did call out "both sides," though.
"Look, what's happened is the weaponization of the criminal justice system by both sides," Dershowitz said. "I believe that if Donald Trump didn't have the last name 'Trump,' that if Hunter Biden didn't have the last name 'Biden,' it is far less likely that either of them would be criminally prosecuted." The segment also discussed how Hunter Biden had been subpoenaed to appear before the House Oversight Committee that same day for a closed-door testimony on Wednesday, though he ultimately defied it in favor of a press conference on the Senate side of the Capitol.
Dershowitz and Bartiromo also discussed how the attorney believes that the impeachment inquiry that the House voted to go forward with was "a tit for tat" from when Trump had been impeached when he was president.
As for the central question at hand here, regarding Trump's immunity, Dershowitz believes that "the president has some immunity, but he doesn't have total immunity." He noted, "It's a very interesting and difficult question." Dershowitz is certain that the Court will decide the question, though it's a matter of when, and believes there have been "hints" that the Court will decide the question before trial.
The issue of election interference was discussed once more. This time, Bartiromo brought it up in the context of how early nominating states in the primary season are fast approaching.
"We've seen polls that say that independents might very well be influenced by whether there's a conviction," Dershowitz aptly pointed out. Though he went on to also explain that "the problem is a conviction would not really carry any weight with reasonable people. If the conviction occurs in New York City or if the conviction occurs in Washington, D.C., or Fulton County," he offered, speaking to the venues for various indictments against Trump. "Those are not venues that can give Donald Trump a fair trial."
On the timing of a trial and the question from Bartiromo of "how does this play out," Dershowitz offered the timing "is going to be up to the discretion of judges," adding, "I suspect there will be at least one trial and probably one conviction before the election. And I think there's a substantial chance that any convictions will be very, very carefully scrutinized by the appellate courts and ultimately by the Supreme Court."
He also confirmed to Bartiromo that the appeal will take place after the election. "That's right," he said. "I think definitely it will be appealed after the election. And I think there's a substantial chance it could be reversed based on venue, based on immunity, based on a lack of a reasonable basis for a search of a phone. There are many, many grounds on appeal, but it will have no effect on the election if it occurs after the election rather than before."
'Remarkable' Jack Smith would appeal his win: Alan Dershowitz | https://t.co/ZiVLMOEXlk @MorningsMaria @FoxBusiness
— Maria Bartiromo (@MariaBartiromo) December 13, 2023
Dershowitz's legal expertise is certainly worth trusting here, including how that applies to whether or not any convictions will affect the 2024 election.
Trump's position in the places has not been hurt by the indictments brought against him. If anything, they've helped him since he remains the front-runner for the nomination. He's even made polling history in Iowa, as Spencer highlighted, with the 51 percent supporting him making for "the largest recorded so close to a competitive Republican caucus in this Iowa poll's history," according to NBC News.
Having to deal with indictments and potentially even convictions – even if they are unjust and even if they will be appealed and overturned on that appeal – is still a risk.
There's also a noteworthy number of people who believe Trump is guilty of the various charges against him, as a recent poll from The Economist/YouGov showed. Then again, people may still believe Biden to be as bad as he is for the country and our country's future.
While Trump and the Republican Party can't take anything for granted ahead of the 2024 election, Dershowitz's analysis and multiple polls showing bad news for Biden as well as good news for Trump continue to provide a glimmer of hope for cautious optimism that everything will play out.