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    Flaw and order: Jack Smith election case hangs on by a thread

    By Ashley Oliver,


    Former President Donald Trump’s four criminal cases have created an unprecedented legal gauntlet for him to run before voters have a chance to decide if he should return to the Oval Office. While Democrats cheer what they see as long-overdue accountability for the former president, some legal experts have expressed concerns that the cases — half are brought by partisan district attorneys, and the other half are overseen by the Biden Justice Department — are built on novel and unfair interpretations of the law. In this series, the Washington Examiner will take a look at the flaws that could unravel the cases against Trump. Part four will look at the Washington case and the tough time Jack Smith will have securing a conviction.

    Part One: Trump trial in Georgia built on weak foundation
    Part Two : Trump classified documents case suffers snags
    Part Three: Trump’s New York trial cracks apart

    The Department of Justice’s election interference case against Donald Trump is in limbo, but even if it returns to normal proceedings, Jack Smith has an uphill climb to securing a conviction of the former president.

    The special counsel, who is leading the prosecution, is at the mercy of the Supreme Court as it weighs two decisions relevant to his indictment. One of the decisions threatens to imperil the case, while the other could result in a small setback for Smith. The high court could hand down these decisions by the end of June.

    But the Supreme Court aside, Smith also relies heavily on Trump’s speech as a means to incriminate him, and legal experts say that if the case resumes, Smith faces the difficult challenge of proving to jurors that the speech was not protected by the Constitution.

    Looming immunity decision

    The most pressing decision before the Supreme Court is whether Trump had absolute immunity from prosecution because the actions cited in the indictment were performed as part of his official duties as president.

    Trump argued that his case should be dismissed over the immunity argument, but Smith disagreed, and Judge Tanya Chutkan, an Obama appointee, denied Trump’s request.

    A Washington, D.C., appellate court roundly affirmed Chutkan’s decision, saying, “We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”

    “It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity,” the appellate judges said.

    Trump then turned to the Supreme Court, asking it to overturn the appellate court’s decision, and the justices took up his request and heard oral arguments on the matter last month.

    The court's decision, which could come as early as next week, could doom the case entirely. However, based on oral arguments, other scenarios appear more likely, and those scenarios could still be favorable to Trump.

    Dan Epstein, a constitutional law professor at St. Thomas University, told the Washington Examiner he could see the justices look for some kind of “out,” such as declaring that Congress must first fully exercise its impeachment authority or issue a contempt determination before any part of the case could continue in federal court. Charges that Trump obstructed Congress could be remedied with a contempt vote, Epstein opined.

    “I certainly think that the Supreme Court, particularly [Chief Justice John] Roberts, would happily say, ‘This case is not ripe because we think Congress has procedures that need to be exhausted before we decide this case,’” Epstein said.

    Another possible outcome could be that the Supreme Court remands to the district court the task of distinguishing which acts were "official" in the indictment, which would dramatically lengthen the pre-trial process and possibly weaken Smith’s indictment if some acts are stripped out of it.

    Epstein said he believes that is a less likely possibility.

    “[The Supreme Court] could have done what's called a GVR; it could have granted, vacated, and remanded without actually hearing oral arguments and all of that, if the majority of justices thought, ‘Look, we don't even have to get into complicated constitutional questions,’” Epstein said. “So if they really thought that was what to hang their hat on, they could have GVR’d it.”

    In yet another scenario, the Supreme Court could outright deny Trump’s request, dealing a victory to Smith and putting the case back on track at the district court level.

    Lastly, in the event the Supreme Court were to agree fully with Trump that he was immune from prosecution, the case would be tossed out entirely.

    Obstruction charge challenge

    A second question before the Supreme Court has fewer implications for Trump but could still affect his indictment by scrapping one of the charges in it.

    The case, Fischer v. United States, examines a statute that hundreds of defendants involved in the Jan. 6 breach were charged under. The statute prohibits obstructing an official proceeding through various types of document tampering, but the law's "or otherwise obstructs" clause has created a legal headache. The Supreme Court must determine if physical obstruction, like what many of the Jan. 6 defendants did, counts. If the high court decides it does not count, hundreds of cases could be upended, and convictions could be overturned.

    Trump, too, was charged under this obstruction statute.

    While many have speculated that Smith incorporated enough evidence for his charges to withstand any conclusion the justices reach in Fischer, Trump's defense attorneys could find a "small wrinkle," according to legal analyst Dennis Aftergut.

    "Trump’s lawyers could argue that his actions were not 'similar to' those described in section 1512(c)(1) in this super-narrow sense: Trump and his associates are accused of creating false documents, they did not 'alter, destroy, mutilate, or conceal a record, document, or other object,'" Aftergut wrote in reference to the language in the statute.

    First Amendment worries

    Smith alleged in his indictment that Trump “used knowingly false claims of election fraud” to pressure election officials into taking unlawful measures to attempt to overturn the election results.

    The special counsel also said Trump intentionally deceived his supporters to the point that he drove them to storm the Capitol on Jan. 6, 2021, as Congress’s election certification proceedings were underway, thereby temporarily obstructing the certification of the election.

    Trump initially asked Chutkan to dismiss his charges entirely on the grounds that the speech cited in the indictment was protected under the First Amendment.

    Trump’s defense attorneys wrote in the motion that the president merely “gave voice” to concerns about widespread election fraud.

    “The First Amendment embraces and encourages exactly this kind of behavior, and therefore states in the clearest of terms that ‘Congress shall make no law ... abridging the freedom of speech,’” the defense attorneys wrote, stating Smith’s indictment violated that sentiment.

    Smith alleged that despite Trump’s closest advisers repeatedly telling him he was wrong, the president peddled prolific unproven claims about the election. The claims included that thousands of dead voters had voted in battleground states and that more ballots were cast than there were voters to cast them. Smith argued that Trump knew he was deceiving election officials and his supporters, who allegedly proceeded to act on his claims by illegally developing alternate slates of electors and rioting at the Capitol.

    Chutkan sided with Smith, saying the First Amendment “does not protect speech that is used as an instrument of a crime.”

    Trump made statements “in furtherance of a crime,” according to the indictment, Chutkan observed, noting how those statements were not protected speech.

    However, Trump if the case goes to trial, Trump's attorneys have made clear they will still attempt to persuade a jury that he was exercising his constitutional freedoms.


    Jonathan Turley, a professor at George Washington Law School, told the Washington Examiner that Smith’s allegations must be based on “more than mere speculation of Trump’s motive” behind his speech.

    “He had every right to call on his supporters to protest at Congress and to support those who were opposing certification," Turley said. "On the current evidence, Smith's case seems not circumstantial but rather conjectural and subjective."

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