Jack Smith’s new Unconstitutional “Superseding Indictment” of Donald Trump
[Jack Smith’s new “superseding indictment” is] the shrinkflation indictment. It’s the same packaging, just less product inside. What [Smith] did is [keep] the four charges, and they just took out any evidence that clearly would have contradicted the [SCOTUS] decision on presidential immunity. It does not hold together, in my view, very well. I don’t even think it solves the problem [posed by the SCOTUS ruling]. For example, [Smith] is keeping, as one of the four main allegations, Trump’s communications with Pence. That’s still presumptively protected under the Supreme Court decision. He also includes communications with members of Congress that could also trip a wire. … [H]e doesn’t really get out of the problem …
GWU Constitutional Law Professor Jonathan Turley, Aug. 27, 2024
[Jack Smith’s new “superseding indictment” is just] charges that Donald Trump knew and believed that he had actually lost the election. How’s the government gonna prove that? He never said that to anybody. He never wrote that anywhere. Did he ever think it? I don’t know. Did he say it on a phone call that was illegally overheard? I doubt it. … [Besides] everything he’s accused of doing is protected by the First Amendment, Article Two of the Constitution and the Twelfth Amendment to the Constitution. … If Trump did believe he had legitimately won, then his actions were not any different from other historical challenges to election results, including the 2000 presidential election between Gore and Bush [and] the 1876 presidential election between Rutherford Hayes and Samuel Tilden ….
Harvard Law Professor Alan Dershowitz, Aug. 28, 2024
This [new indictment] is going nowhere. Nothing’s going to happen.
NYU J.D. and Former Assistant DA for the Southern District of New York J.D. Andy McCarthy
The special counsel [Jack Smith in his recent “superseding indictment]” largely brushes off the recent [SCOTUS] immunity ruling.
Editorial Board, Wall Street Journal, Aug. 28, 2024
‘No white knight’: Jack Smith’s record rife with mistrials, overturned convictions, judicial rebukes. … Smith and other prosecutors working on the Trump case have followed familiar playbook. The script earned Smith a reputation as a hard-driving, intense prosecutor but a string of mistrials and overturned convictions led to sharp rebukes [all emphasis added] from federal judges, including U.S. Chief Justice John G. Roberts Jr.
The Washington Times, July 4, 2023
Naturally what remains of our “Democrat” Party and its propagandists in what masquerades as our “news” media were thrilled when Jack Smith obtained a new “superseding” indictment to damage Trump before the 2024 election. How does CNN know that it “rocks” the race? Pray tell! Unfortunately, there are multiple obvious problems with the new indictment pointed out by GWU Law Professor Jonathan Turley and Harvard Law Professor Alan Dershowitz.
Turley points out that the new indictment pairs down the charges but retains some of the evidence, e.g., Trump’s communications with VP Mike Pence and his communications with Congress, that, according to the SCOTUS ruling, is “presumptively protected” by the Constitution. That is, since the SCOTUS’ ruling states that Trump’s “actions within his conclusive and preclusive constitutional authority” as president possesses “absolute immunity from criminal prosecution” and that he is “entitled to at least presumptive immunity from prosecution for all [emphasis added] his official acts”, and since his communications with VP Pence and with Congress (not secret communications to a hit man) appear to fall within his presidential authority to protect the integrity of elections, Smith just seems to “brush aside” the SCOTUS ruling. Smith has paired down his charges but retained evidence that is at least presumptively unconstitutional.
Dershowitz points out that the new Smith indictment still falls afoul of the 1st Amendment (Trump’s right to free speech to say what he believes about the results of the election), Article II of the Constitution (which specifies the powers of the President), and the 12th Amendment which specifies what happens if the presidential election is thrown to the House of Representatives due to a tie in electoral votes). However, Dershowitz’s most basic point is that there is no reasonable way for Jack Smith to prove that Trump did not believe that he won the election (even if that belief was false). Lots of people believe false things. Are we going to put Biden in jail for claiming falsely that, as his reason for running for president in 2020, that Trump praised NAZI’s and White Supremacists at the 2019 Charlottesville protest at removing Confederate statues or for claiming falsely that his son earned no money from China? Are we going to indict every presidential candidate who makes false statements in a campaign, for example, Hillary Clinton for saying falsely that “James Comey found her public statements about not sending or receiving classified email on her private server to be ‘truthful’.” If we indict every presidential candidate for making false statements in a campaign, who will want to run for president?
In fact, even if Trump told someone he believed he lost the election, that would not prove that Trump attempted to “defraud” the country. People change their minds. Al Gore famously conceded the 2000 election to Bush called Bush two hours later to “retract” his concession. People change their minds as the results stream in on election night.
When can we expect the indictments of Biden and Hillary to come down? Of course, they will never come down because Biden and Hillary belong to the protected class. They have that big “D”” behind their names. In fact, even “Republicans” like Robert Hur protect Democrat elites. Dershowitz states that Hur was wrong in every way he could have been wrong because “[either] Biden should have been charged or Trump’s case should have been dismissed” (because of the two cases were treated unjustifiably differently). Dershowitz gives Hur only a D-minus and that’s benefiting from “grade inflation.”
In fact, Smith’s record is “rife with mistrials, overturned convictions, judicial rebukes,” even “sharp rebukes”. That is why Merrick Garland selected a “pit bull”, Jack Smith, as “special counsel” to go after Trump while selecting pussycat Robert Hur to go after Biden, thereby damaging public trust in our legal institutions. Comically, the NYT claims that the Garland indictment of NJ Democrat senator Bob Menendez undermines the accusation of a two-tier justice system. In fact, Menendez was one of the few high-profile Democrats to criticize Biden’s immigration policy. In April 2023 Menendez sharply criticized Biden and five months later, in Dec. 2023, Menendez was indicted. What a coincidence!
There is virtually no chance that Smith’s absurd indictment of Trump will be upheld on appeal (if it goes as far as the Supreme Court). However, the aim of all the Trump indictments is to damage him before the 2024 election (even if the convictions are overturned after the election). Unfortunately, as Dershowitz points out, these indictments will spark a war of weaponization of the legal system against political opponents that will be extremely damaging to the country – not that the Democrats or their media-poodles care (or even think that far ahead). The “green-eyed monster” of hatred’s only aim is to win NOW!
It is long overdue that the Stalinist lawfare against Trump and other Republicans is put to bed for good before it tears apart the country.
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