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.
