Evaluating the case on its merits alone illustrates just how illegitimate it is.
The premise is that Mr. Trump didn’t really believe that he lost the 2020 presidential election.
So when he used every available means to contest it—pleading with states to run audits and recounts and pursue allegations of fraud and irregularities, litigating, preparing alternate slates of electors, seeking to halt the certification of the vote so states could comprehensively review the claims of election issues, and exhausting every other possible remedy in consultation with his lawyers—that effort constituted a fraud, and a criminal conspiracy at that.
To criminalize Mr. Trump’s efforts to contest an election about which millions of Americans were skeptical, Mr. Smith tortures laws in pursuit of what amount to thought crimes.
Just consider the charges on their face.
One count is for conspiracy against rights—specifically “the right to vote, and to have one’s vote counted.”
It would seem inapt then to apply this charge to one’s contesting of an election—an exercise in both stretching the statute and using it to smear Mr. Trump, given its origins in combating the Ku Klux Klan.
Throwing caution to the wind, however, Mr. Smith apparently intends to make the case that Mr. Trump’s effort to pursue claims of fraudulent or illegally cast votes often made under rules unlawfully enacted or laws unlawfully relaxed—which would dilute and, in effect, disenfranchise lawful voters—is an assault on voting rights.
Stated differently, Mr. Smith and, by extension, the Biden Justice Department would seem to be arguing that seeking to ensure the integrity of the vote equals a conspiracy against the vote.
Two of the three remaining counts include obstruction of an official proceeding and conspiracy to obstruct an official proceeding.
The relevant law derives from the Sarbanes–Oxley Act, which came out of the Enron accounting scandal.
It falls under Title 18, Section 1512, of the U.S. code, which, again on its face, would seem to be inapt, as it deals with “tampering with victims, witnesses or informants.”
Before Jan. 6, 2021, this law had never been applied to political protesters.
But the Justice Department shoehorned the conduct of Capitol riot defendants to fit this charge and slapped scores of them with felonies that carry a sentence of up to 20 years.
Setting aside the unprecedented usage of these charges, it seems that Mr. Smith will argue that Mr. Trump owned the Capitol riot through his words and actions—or, as written in the indictment, that Trump sought to “corruptly obstruct and impede ... the certification of the electoral vote” through inciting said riot.
There are any number of problems with this charge, however.
First, Mr. Trump had, in the days prior to the Capitol riot, authorized thousands more officers to be deployed to provide security on Jan. 6, 2021, in anticipation of the rally in which the president participated and during the anticipated contentious legislative session.
Second, the breach of the Capitol began before Mr. Trump even finished a Jan. 6 speech in which he cheered on protesters who he indicated would be marching “peacefully and patriotically” to the Capitol to support legislators objecting to the certification of the election.
Third, Mr. Smith, glaringly, didn’t charge Mr. Trump with inciting an insurrection.
Given the foregoing, is Mr. Smith really going to argue that Mr. Trump tried to obstruct an official proceeding that was his last and best hope for contesting the election?
Is Mr. Smith really going to argue that—having not laid the Capitol riot at Mr. Trump’s feet legally and despite that Mr. Trump had wanted to beef up security to deter such an act and was exhorting peaceful protesters to support an official proceeding—that actually he wanted to obstruct said official proceeding?
Maybe Mr. Smith wants to argue that then-President Trump and then-attorney John Eastman’s consideration of various alternatives to contesting the election and persuade Vice President Mike Pence to act accordingly were criminal.
But leaving aside how chilling that idea is, still, the only way any action could be taken to challenge the certification of the votes would have been for the official proceeding in question to take place in Congress on Jan. 6, 2021—something the Capitol riot derailed.
Finally, there’s the lead charge of “conspiracy to defraud the United States.”
Again for the sake of argument, let’s ignore the underlying premise that psychic Mr. Smith believes that Mr. Trump believed he lost—largely based on what officials around Mr. Trump were telling him, as if that’s supposed to mean something to a notoriously contrarian figure—and that therefore, his election challenge was the fraudulent fruit of this poisonous tree.
The legitimacy of our elections would seem to be of manifest importance to protecting the integrity of the United States.
Would one not then be duty-bound—if one felt an election was conducted illegitimately, tainting its result—to exhaust every possible political and legal means to ensure an honest vote count and, therefore, the integrity of the election and the nation itself?
Given the foregoing, ask yourself this: If you were a fair-minded federal prosecutor, serving at the pleasure of one president, would you pursue his predecessor and leading political opponent—for conduct and over issues already addressed by legal and political processes, including an impeachment—as Mr. Smith does.
And ask yourself, if these are the new standards, would you not be opening the door for every party in power to weaponize the justice system accordingly to punish its political enemies?
We’re being desensitized to and witnessing the normalizing of show trials in America that damage the fundamental rights of us all and the integrity of the system itself—under cover of justice.
That’s the real fraud here.
