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An Astonishing Indictment

Posted on Tuesday, August 15, 2023
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by AMAC, Robert B. Charles
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Trump saluting helicopter before indictment

How does one dispassionately assess an astonishing indictment, arguably the boldest prosecution of a political actor in American history – Jack Smith’s latest indictment of former President Donald Trump on four counts of what amounts to “conspiracy to defraud” the United States?  

First, these counts – if you read them – turn on Trump’s belief that he was the victim of non-trivial election fraud in 2020, an election year characterized by COVID-related innovations affecting how votes were cast, collected, tallied, certified, and converted by electors into electoral votes, counted on January 6th at the US Capitol.

The four counts depend on things both doubtful and hard to prove. Smith asserts that Trump’s belief –that election irregularities occurred in six states, that these may have affected the election – was insincere. That is a central fact. Without it, there is no intent to defraud.

In effect, the prosecutor must prove no reasonable person could have believed otherwise – or that, based on what was known, no basis existed for doubting the procedures, implementation, or outcomes in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin.

Against the backdrop of COVID-related changes to voting, tabulating, and certifying in all 50 states, particularly changes in these six states, one is hard-pressed to eliminate all doubt.

Arizona has since considered more than 100 bills to correct perceived COVID-related deficiencies in their electoral system, including how votes are cast, counted, and oversight.

Georgia changed laws post-COVID to correct questions created by 2020 ballot drop boxes, “ballot harvesting,” access to and verification of absentee ballots, and other COVID procedures.

Hundreds of changes have occurred nationwide, including in Michigan, Nevada, Pennsylvania, and Wisconsin

In just these six states, voting practices were “fundamentally altered” in 2020 by COVID, raising legitimate questions about how these changes affected the process. The prosecutor must, to convict Trump, prove no reasonable person could have maintained at that time that these questions were material to each state’s election outcome, which seems a very high bar. 

Second, even if Smith could prove Trump did not hold a sincere belief about election integrity, and no reasonable person could have doubted the election, he must prove Trump’s speech on January 6th was not protected by the First Amendment and was the “proximate cause” of a spin-off riot, following a significant and largely peaceful protest.

This again seems a high bar since – as many scholars note – if you can criminalize political speech, where does that stop? If you prosecute for untruths, controversial opinions, things that upset and inspire people to protest or assert a grievance, including fear for the electoral process – what politician is beyond prosecution, where does that lead, and what is left of the First Amendment?

For those who say Trump’s speech was incitement, producing an unruly riot by a fraction of those who heard his words, one has to wonder where that line of argument also stops?

On issues from race to abortion, war to poverty, half the politicians who ever served might then be prosecuted as the “proximate cause” of protests which – without any specific intent that a crime occurs – devolved into lawless riots, mass, and individual crimes, and got out of hand.

If political speech is to survive in this country – key to truth-seeking – politicians of all persuasions must be allowed to boast and bash, pontificate, and over-punctuate, invoke and provoke, ingratiate and infuriate, offend and make fools of themselves, or on the flip side point out and encourage people to protest in order to right perceived wrongs.

Finally – a bold suggestion – one must look at the prosecutor’s motives, behaviors, and personal records. What really lies behind these astonishing, long-stretch, hard-to-prove charges?

If one rereads the Supreme Court’s US v. McDonnell decision, one fact emerges. The case is a censure of this same prosecutor, Mr. Jack Smith, for asserting a plainly overbroad, constitutionally indefensible interpretation of federal laws – eviscerating the Constitution.

That decision was unanimous, 9-0, vacating a conviction. It leaves no room for doubt. This same prosecutor knowingly targeted a Republican, former Virginia Governor Bob McDonnell, for a crime that was not a crime. Smith boldly overstepped his authority and was smacked down.

Language in that opinion – aimed at Smith – warns him against “overzealous prosecution,” using a statute as a “meat axe” intended to be a “scalpel,” and “invoking a shapeless provision to condemn someone to prison” – violating the Constitution.

In that case, they make clear the prosecutorial error – indefensible prejudice – as “it was possible to avoid the ‘absurdities’ of convicting individuals on corruption charges for engaging in … conduct” that was constitutionally protected. In short, there was no excuse.

The question no one is asking about this prosecutor – a lifetime partisan whose wife produced a glowing documentary of Michele Obama – is: How much is too much? When does partisanship become abuse, and “overzealous” become misconduct? When does a prosecutor face sanctions or charges? Like the First Amendment, these questions matter. This is an astonishing indictment.

Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.

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Myrna
Myrna
11 months ago

Don’t just talk about it. Congress can/should defund Jack Smith. He needs to know the majority is watching.

Tory
Tory
11 months ago

Election interference started long before the election. Hunter Bidens laptop was protected by our DOJ at the start of primaries which would have revealed a few serious global compromises to any Biden nominee.
The swamp is deep in DC and extends with the continued election interference.
This lawlessness of the Democratic leadership is more of the same to repeat the same offense. They disrespect our Democracy and have weaponized their power unlawfully.
This boldness is also a compromise to our national security. A sad state of American Affairs.

PaulE
PaulE
11 months ago

Last Friday, AG Garland announced that Weiss, the same federal prosecutor who slow-walked the Hunter Biden case for 5 years to allow the statute of limitations to expire on the most egregious charges. would now be the Special Counsel handling the same matter. Esssentially resetting the investigation clock to zero and ensuring everything will drag out well past the 2024 election.

On Monday, Fani Willis in Georgia moved forward with yet another spurious and groundless indictment of Trump. So, the pattern of news involving the Bidens leading almost immediately to another indictment of Trump continues. At this point, the Democrats are simply giving the country the middle finger and not even bothering to mask their agenda. Still, I’m sure some small minority of the American public will be too stupid to see the obvious. Those would be the ones that continue to think Biden and comoany are doing a great job. All of this adds up to standard 3rd world banana republic politics to try and eliminate the greatest threat to the regime in power. The world continues to watch the decline of the United States as our adversaries essentially have free reign.

Meanwhile, our Puppet in Chief continues to enjoy an extended vacation at the beach (he has such a grueling work schedule after all), while the residents of Maui continue to dig for more bodies and the folks of East Palestine remain forgotten. Biden and his puppet masters around him don’t have a care in the world. The Democrat Party and our corrupted justice system are working diligently to ensure he gets a second term without the need to actually campaign and that his family remains completely unaccountable for any of the laws they have broken. Life is very good indeed, if your last name is Biden. No need to campaign for re-election, as the plan is to repeat the same illegal manipulations that secured him the WH in 2020. The rest of the country can go pound sand (pun intended) as Joe and Jill enjoy another carefree day at the beach. Who says America isn’t a great country? (That was sarcasm folks.)

Morbious
Morbious
11 months ago

McDonnell was vindicated legally but was taken out politically. He was also drained financially. In this type of guerrilla lawfare thats the goal. The commies are concerned with results, not principles.

Stephen Russell
Stephen Russell
11 months ago

Love the timing & too bad cant do same to Hunter
True election inteference by Dems

Bil Smith
Bil Smith
11 months ago

The true conspiracy and present danger to the republic is the forces arrayed against Trump and his conservative supporters since 2015. The incredible determination to prevent one man from attaining power and resuming his America First policies and programs is blatantly evident in the continuation of harassments against one individual capable of unifying and mobilizing half the populaion of this nation. He may be unlikeabale, but so far his opponents have been dispicable, especially the current judas goat in office.

Rik
Rik
11 months ago

Amazing! . . . Our so-called Mainstream Media and major Political Party are “pushing” a phony indictment that ANY HONEST COURT OF LAW wouldn’t waste an ounce of time on. They must think we’re ALL AS STUPID AS THEY ARE! They believe that the People are to be dominated by Jackasses who desire ultimate power over everyone else! CRAZY!

anna hubert
anna hubert
11 months ago

That anyone should be astonished at this witch hunt is astonishing. Salem revisited Grand inquisitor is in charge

Honey
Honey
11 months ago

No reasonable person would believe that there was fraud in the 2020 election?
I wish I could be called as a witness for Trump. I can cite chapter and verse the many reasons I KNOW there was fraud in the Pa. election in 2020. Where was the Supreme Court? Were they threatened? Were they bought off? No way they could have ignored what was going on.
I have been walking around angry since early 2020 and I do not believe I am alone. Where is all of this energy going to go in all of the many Americans that are losing faith in their institutions?
I just listened to the last in a series of seven podcasts on C.S. Lewis’s Narnia Chronicles. What is described in the last one is end of days. Boy did that sound like what is going on in my beloved country.
Trump 2024!

Dan W.
Dan W.
11 months ago

Jack Smith’s two cases are both speculative and this one is the weakest of the two. Probably, no convictions in either one and probably no conviction in the NY state case regarding business records either.
The case that may bite President Trump is the Georgia state case. His main problem there is the multitude of co-defendants, many of whom are likely to flip on Trump to get a better deal for themselves. A lesser problem is that many of the state’s witnesses are GOP elected officials. Not a good look in front of a jury.

David Millikan
David Millikan
11 months ago

Total Election Interference from WEAPONIZED DOJ authorized by Dictator Beijing biden against his political opponent.

Marc Ziegler
Marc Ziegler
11 months ago

When does these phony charges like the ones against Trump stop. When prosecutors like Jack Smith get charged with a felony for bringing bogus charge that are dismissed by a court of law. When it can be shown that any prosecution was unjust and biased against a defendant, the prosecutor should be held accountable. I guaranty these corrupt prosecutors would stop this behavior when presented with10 years in the slammer and the loss of their law license. Go Trump, MAGA

DDS
DDS
11 months ago

ONCE AGAIN, THANK YOU FOR CONTINUING THE FIGHT. YOU ARE THE VOICE OF SANITY IN THIS HORRENDOUS FIGHT.

Robert Zuccaro
Robert Zuccaro
11 months ago

TRUMPed up charges. I’m sure its all a coincidence he’s running for President. Good thing Adam Schiff never turned over his briefcase full of evidence or Trump would REALLY be in trouble!

Melinda
Melinda
11 months ago

Good questions to ask, RBC, but the best one is “…what politician is beyond prosecution?” Smith is so obviously overzealous, but with a jury in DC anything can happen (and probably will). These Trump prosecutions provide much food for thought, but no matter what we think we can’t control the outcome.

Kyle Buy you some guns,and learn how to shoot
Kyle Buy you some guns,and learn how to shoot
11 months ago

The Dems . are svcard of Trump. They knoiw he can beat them. Kyle L.

Bob Olden
Bob Olden
11 months ago

Trump is such a threat to the self-proclaimed righteousness of the Democrats! He’s not Jesus, but even if he were, they would be shouting “Crucify him! Crucify him!” Of course they would never humble themselves to admit their own flagrant corruption. And God forbid that they would remember Jesus’ words: “Let him who is without sin cast the first stone.”
God have mercy on their shriveled souls.

Bruce P
Bruce P
11 months ago

It’s all politics. There’s nothing to do with what is or isn’t legal, or even right.

CHRIS
CHRIS
11 months ago

Heil Biden, Heil Biden. Raise your LEFT arm to praise him. Not your right arm. People will think you are a nazi. Just my opinion. CHRIS

Susannator1958@gmail.com
11 months ago

I’m 65 and highly AGITATED and angry BECAUSE OF U.S.A. ELECTION FRAUD and traitors in u.s. government…WE COULD LIVE IN A UTOPEAN U.S A. but for deepstate CRONYISM…TERM LIMITS …NIW!

Linda
Linda
11 months ago

AMERICA WE LOVE and GREW UP IS NO Longer

johnh
johnh
11 months ago

One thing astonishing is that Trump personally phoned Georgia AG & that conversation was taped. Will give the AG a lot of credit, because how many of us would not cave in if the POTUS called one of us personally & asked us to do what he wanted?

biden; carter, wilson, hoover presidents
trump and vance
Secret Service agents rush Donald Trump off the stage.(AP: Evan Vucci)
Biden with Harris and Obama behind him

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