by Will Scharf, former Federal Prosecutor
Special Counsel Jack Smith’s latest indictment against President Trump seeks to criminalize political speech and taking incorrect legal advice. Americans of all political stripes should be furious and deeply concerned by the course Smith has set this country on.
I have reviewed the new Trump indictment closely, and sadly, it is exactly what we have come to expect from Smith’s team — a highly political document, riddled with legal and factual infirmities. This indictment should have never been brought to a grand jury in the first place. Moreover, its timing, particularly in light of Smith’s statements and actions in the Trump documents case, is so highly suspect that it casts a political pall over the whole case.
Smith’s indictment contains four counts against Trump.
The first, brought under 18 U.S.C. § 371, alleges that Trump conspired to defraud the United States “by using knowingly false claims of election fraud to obstruct federal government function by which those results are collected, counted and certified.”
The second and third allege conspiracy to obstruct an official proceeding and the actual or attempted obstruction of an official proceeding, both in violation of subsections of 18 U.S.C. § 1512.
The fourth alleges that Trump committed a “conspiracy against rights,” by knowingly conspiring to deprive Americans of their right to vote and have their votes counted, in violation of 18 U.S.C. § 241.
Having read the indictment, having followed Jan. 6-related cases closely, having read extensive news coverage, and having spoken to others with experience in this area of the law, I do not believe any of these charges can fairly be proven beyond a reasonable doubt in front of a fair judge and jury. Additionally, I expect that were this case to reach the Supreme Court, the court would reject Smith’s theories of liability on all or at least some of these counts, as it did unanimously with his prosecution of former Virginia Gov. Bob McDonnell.
Smith and his team did a real disservice to the cause of justice by bringing this indictment.
- Trump’s State of Mind
In the Trump documents case, we’ve already seen how thorny issues of intent can be. There, many of us have argued that, in light of the president’s rights and responsibilities under the Presidential Records Act, it is essentially impossible for Jack Smith to prove that Trump knowingly violated the Espionage Act subsection charged.
Here, we have a similar issue. For all four of these charges, Smith needs to prove beyond a reasonable doubt that Trump knew his claims about election integrity were false, and that he knew the legal theories his team advanced were not viable.
Not just that these claims were false, not just that Trump might have known that they were false, or that Trump should have known that they were false. If Trump did not actually know his claims were false and the theories he was advancing were wrong, then I do not see how he can be found guilty of any of the four charges in the indictment.
While Smith points to a few statements Trump allegedly made to others at various stages of his election challenges where he impliedly (if you squint hard enough) appears to concede defeat, the overwhelming gravamen of Trump’s statements and actions indicate he believed that his claims — both factual about the conduct of the election and legal about potential remedies — were true. Considering the record as a whole, how does one go about proving Trump didn’t believe his own arguments?
Moreover, three of these counts charge conspiracy. For those counts, Smith likely has to prove that Trump’s alleged co-conspirators also knew the claims they were advancing were false. And that Trump and his alleged co-conspirators all agreed, knowing that the claims were false, to press ahead anyway. Given the list of co-conspirators, their activities during the time period in question, and the interactions between them and Trump that have already been made public, I think the opposite is likely the case.
In short, proving the requisite intent on the part of Trump and his alleged co-conspirators on all of these charges is likely impossible, at least in front of a fair jury in a fair courtroom. This indictment should never have been brought.
- Criminalizing Political Speech
Others have made this point publicly already, so I won’t belabor it. To put it simply, Jack Smith’s theory of the case necessarily requires criminalizing political speech. This is core, protected activity under the First Amendment, and the legal implications are truly scary for our democracy.
Is any public challenge to a certified federal election a criminal act? In Jack Smith’s telling, the answer is probably yes. At what point do election challenges become criminal? Based on Jack Smith’s theory of the case, the answer to that is entirely unclear, meaning that the very fact that this indictment was brought may have a deeply chilling effect on protected speech in years to come.
Hillary Clinton, Stacey Abrams, and many, many others have claimed for years that their elections were stolen from them. Abrams continued her efforts to challenge her defeat to Brian Kemp long after the results were clear. Andrew Jackson claimed John Quincy Adams cheated him out of the election of 1824. After the 2000, 2004, and 2016 elections, Democrats attempted to interfere with the electoral count process. Did those actions constitute a conspiracy against rights under § 241? Under Jack Smith’s theory of the case, I think the answer is unclear, but possible.
Taking political speech and political acts of this sort and shoehorning them into criminal statutes that have never before been used in this way is terrifying. Political candidates should not live in fear of prosecution by their political opponents for stating their views about their elections.
Jack Smith, in his rush to “get Trump,” has done serious violence to our constitutional order and Bill of Rights.
- Proving Trump’s Specific Intent
Section 241 is a statute that was originally designed to deal with violence against black voters by the Ku Klux Klan, and other similar efforts to deprive people of their constitutional rights. Jack Smith’s use of it here is outrageous on its face, designed to inflame perhaps more than anything else. But there are also serious legal issues that Smith and his team seem to have been willing to ignore in terms of the statute’s applicability to the facts alleged.
In United States v. Guest, the Supreme Court grappled with the constitutionality of this statute, facing an argument that it was unconstitutionally vague and overbroad. The Supreme Court ultimately held that the statute was constitutional, but only because of the heightened intent requirements that follow from it being a conspiracy statute. In the Supreme Court’s words, “[a] specific intent to interfere with the federal right [at issue] must be proved” on the part of the alleged conspirators. Only because of that specific intent requirement was the prosecution in that case allowable, and was the statute itself deemed to pass constitutional muster.
Eight years later, in Anderson v. United States, the Supreme Court addressed the applicability of § 241 to a scheme to cast fake votes for federal, state, and local candidates in West Virginia. The court cautioned that “[i]t is established that since the gravamen of the offense under § 241 is conspiracy, the prosecution must show that the offender acted with a specific intent to interfere with the federal rights in question.” Furthermore, the court stated that “special care” was warranted in assessing this intent, because “charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning … a dragnet to draw in all substantive crimes.”
To prove his case, it’s not enough for Jack Smith to prove that Trump and his alleged co-conspirators sought to overturn certified election results — he needs to prove they acted with specific intent to deprive people of the right to have their votes counted. This cannot be established by inference, under binding Supreme Court precedent. Smith needs evidence that Trump’s intent was specifically to deprive people of their right to have their votes counted.
On the face of the indictment and public record, it doesn’t appear he has anything close to meeting this high bar.
- Proving a Fraud Conspiracy
Section 371 is a statute that criminalizes defrauding the federal government or interfering in lawful functions of government. Its origins are in the tax fraud context, and it was originally cabined closely to property fraud against the federal government. Even after the statute was expanded, though, the Supreme Court has urged caution throughout the statute’s history that a conspiracy charge relating to the obstruction of governmental functions must be premised on the use of “deceit, craft or trickery, or at least by means that are dishonest,” as was decided in Hammerschmidt v. United States. “Open defiance” of the law, for example, cannot give rise to a § 371 charge.
Courts have consistently held that obtaining a conviction under this statute requires both the existence of an agreement to achieve an unlawful objective, as well as deliberate, knowing, and specific intent to participate in that agreement.
Smith’s theory is that Trump and his alleged co-conspirators conspired to “defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government.” But in light of the requirements for proving fraud conspiracy under § 371, Smith needs to show that Trump and his team knew their theories were groundless when they promoted them to state legislators and other decision-makers in the electoral count process and encouraged those officials to take various official actions. And that Trump and his team agreed this was the plan — promoting theories they knew were groundless, based on facts that they knew were false, to these legislators and officials.
The fact that Trump received advice to the contrary just doesn’t cut it, from a legal perspective, when it comes to proving a fraud conspiracy under § 371. This charge appears to be dead on arrival from a legal perspective.
- Misapplication of Obstruction Law
Section 1512 was originally enacted as part of the Sarbanes Oxley Act in 2002, intended to deal with the fallout from the Enron collapse and investigations. Subsection (c), under which Trump has been charged, deals primarily with destroying evidence in advance of judicial proceedings or legislative inquiries, but it also contains a catchall provision that criminalizes corruptly “obstructing” an official proceeding.
The Biden DOJ has used this catchall provision, controversially, to prosecute Jan. 6 defendants, and two of the counts in this new indictment track this theory — that Trump’s activities and statements constituted an obstruction of an official proceeding, namely the electoral count process.
This is an issue that is expected to come before the Supreme Court sooner rather than later. In a sharply divided panel opinion this April, the D.C. Circuit allowed § 1512 charges to proceed against three Jan. 6 defendants. But it did so only on the basis that, in the words of Judge Justin Walker’s decisive concurrence, the act’s requirement of a “corrupt” mental state on the part of the defendants sharply delimited its scope. In Walker’s view, to convict under this statute, a defendant must have acted with the specific intent “to procure an unlawful benefit either for himself or for some other person.” (Judge Katsas dissented and would have dismissed the charges entirely).
Under this reading of the statute, it is not enough that Trump (and, in the case of the conspiracy charge, his alleged co-conspirators) called for protests. It is not enough that Trump tried to prevent the certification of the election or the counting of electoral votes. Trump could have burned down the Capitol personally and that wouldn’t necessarily meet this high bar. He must be proven beyond a reasonable doubt to have done what he did to procure a benefit for himself that he knew to be unlawful. As with the other statutes discussed above, this is a very high bar to meet, and the facts as presented simply do not support this charge.
- Perfectly Timing the Trial for Election Season
As he did with his original indictment in the documents, Jack Smith accompanied his announcement of charges yesterday with a cynical call for a “speedy trial.” More than anything else, Smith’s insistence that these cases that he is bringing should be tried at the height of a presidential election adds fuel to the fire of Trump’s expressed view that the special counsel is waging a political campaign against him, not a valid legal investigation.
There is simply no reason why this case needs to be litigated now, as opposed to two years ago, or as opposed to after the presidential election in 2024. In the documents case, Smith followed his speedy trial call with a voluminous discovery production consisting of close to a million pages of documentary evidence, nine months of video recordings, and terabytes of data to be analyzed by Trump’s defense team. He then proceeded to file a superseding indictment adding new charges and a new defendant. That case was either ready for trial at the time it was brought, or it wasn’t, but Smith can’t have it both ways — his public statements and court filings amount to a gaslighting of the federal court and indeed of the American people.
In this case, the timing concerns are even more severe. The facts at issue date back to 2020 and the first few days of 2021. President Trump has already been impeached and acquitted for the same conduct he now faces these criminal charges for. Trump is now running to be president again (and winning in many polls).
Inserting this case into the presidential election season has all the appearances of an attempt by Smith to substitute the judgment of his office, a single judge, and 12 D.C. jurors for the millions of Americans who would otherwise have had the opportunity to weigh these facts, alongside all the other political considerations that go into a presidential election. These millions of Americans will likely be faced with a choice to vote for Smith’s boss, Joe Biden, or his likely opponent, Donald Trump.
Prosecuting a political opponent during a presidential election in this manner smacks of banana republic politics.
Will Scharf is a former federal prosecutor, who also worked on the confirmations of Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett. He is currently a Republican candidate for Missouri Attorney General.