Harvard Law School professor Alan Dershowitz said former President Donald Trump may be convicted on charges filed by special counsel Jack Smith in the nation’s capital, but he believes the conviction will not survive a review by the U.S. Supreme Court.
In an interview with Fox News’ Sean Hannity on Wednesday, Mr. Dershowitz said there was “freedom to petition the government for a redress of grievances and freedom to challenge elections.”
“In the indictment they acknowledge that there are these freedoms, but then they claim that Donald—and this is the key point—that Donald Trump actually believed that he lost the election, that everything he did was fraudulent. That he conspired with unnamed lawyers, mostly, to affect the election outcome.
“You’re allowed to challenge elections,“ Mr. Dershowitz said. ”Indeed, the best way to challenge elections is to come up with a slate of alternate electors. That’s what a court said in Hawaii in 1960, that’s been the case throughout our history.”
Mr. Dershowitz said the government has the burden of proof to show beyond a reasonable doubt that Mr. Trump actually believed that he lost the election and acted contrary to that belief.
“I’ve read the indictment very carefully,“ he said. ”There is no smoking gun. There is no one who is credibly prepared to testify that Donald Trump said to him, ‘I know personally I lost the election.’ There is a lot of evidence that people told him he lost the election, but you know Donald Trump and you know that he’s going to make up his own mind. And they’re going to have a very hard time proving it.”
Fair Trial in Washington?
Mr. Trump has raised concerns about not getting a fair trial in Washington.The latest case “will hopefully be moved to an impartial Venue, such as the politically unbiased nearby State of West Virginia!” Mr. Trump said in an Aug. 3 post on Truth Social. It is “IMPOSSIBLE to get a fair trial in Washington, D.C., which is over 95 percent anti-Trump, & for which I have called for a Federal TAKEOVER in order to bring our Capital back to Greatness.”
During the 2020 election, President Joe Biden won more than 92 percent of the vote in Washington. In contrast, Mr. Trump dominated in West Virginia where he garnered over 68 percent of the vote.
In an Aug. 2 interview with NPR, John Lauro, one of Mr. Trump’s attorneys, pointed out that the preference for West Virginia as the trial venue is because the state is more evenly divided politically.
“We’re looking for a jury that will be more balanced, and West Virginia was a state that was more evenly divided, and we’re hoping for a jury that doesn’t come with any implicit or explicit bias or prejudice,“ he said. ”So it makes sense to go to a place like West Virginia.”
Furthermore, Mr. Trump’s team has concerns about Obama-appointed District Judge Tanya Chutkan who is presiding over the case.
In November 2021, Judge Chutkan rejected Mr. Trump’s attempt to block the Jan. 6 House select committee from accessing hundreds of documents from the White House despite Mr. Trump’s claim of executive privilege.
Mr. Trump’s arguments appear “to be premised on the notion that his executive power ‘exists in perpetuity’ ... but presidents are not kings, and Plaintiff is not President,” she wrote at the time.
‘A Stretch’ of an Indictment
Prosecutors say that Mr. Trump “widely disseminated” false claims about the 2020 election to “create an intense national atmosphere of mistrust and anger and erode public faith in the administration of elections.”Mr. Trump has pleaded not guilty.
Gregg Jarrett, a Fox News legal analyst, echoed the sentiments of Mr. Dershowitz in the program.
“This indictment strikes me as an amateurish joke, Mr. Jarrett said. “The former president has been charged with four counts, including a conspiracy to “impair, obstruct, and defeat” the collection and counting of electoral votes.
“Frankly, Jack Smith as a special counsel should be indicted for stupidity—it’s that bad. But he has this disreputable habit of bringing politically-driven prosecutions by contorting the law and mangling the evidence. These four counts are the definition of a stretch.”
Mr. Jarrett said that Mr. Trump was “entitled” to challenge the certification of electors under the Electoral Count Act.
“Democrats did the same thing in 2016 and in prior elections. Nor is it a crime to challenge the election was stolen, which Hillary Clinton and Nancy Pelosi alleged four years earlier.”
If Mr. Trump believed he won and “used the legal process to contest the outcome as the law clearly permits, that is not election fraud.” The other charges of Mr. Smith are “redundant of the first charge, and the exact same defense applies.”
Matthew Whitaker, former acting U.S. Attorney General, also appeared in the Fox News segment, saying “I have never seen an indictment this messy and sloppy in my life.”
Mr. Whitaker said that even Mr. Smith, who brought forth the charges, admits “there was fraud in this last election.” Although Mr. Smith claims there wasn’t an “outcome determinant amount of fraud, but there was enough fraud,” said Mr. Whitaker.
Mr. Dershowitz reiterated the issue of the trial venue. He said the first motion Mr. Trump’s lawyers would undertake would be to move the location.
“Remember, this is a federal indictment, so it doesn’t have to be tried within the state.”
The general consensus was that Trump will lose in Washington, but will prevail on appeal.
“I think he may lose in the United States Court of Appeals for the D.C. Circuit, but I think he will probably win in the United States Supreme Court, if they grant review, and they should grant review. When you have the president of the United States and his people going after his opponent in a political election, it has to be beyond reproach. It has to be without any problem. It has to be the strongest case in history,” Mr. Dershowitz said.
“This doesn’t meet that standard.”
