This post originally appeared at https://www.wisconsinrightnow.com/jack-smith-latest-trump-indictment/

Before we start throwing political opponents in jail like some banana republic based on legal stretches or theories, trust the voters to sort it out. Remember them?

Reading the third Trump indictment (yes, third!), one is reminded of the Durham report into the Russia hoax. Remember that? It disappeared after barely a blip in the elite media.

In his report, Special Counsel John Durham slammed the FBI for launching an investigation into President Donald Trump and Russia based on uncorroborated, thin intelligence, for ignoring or downplaying information that countered the narrative, and for treating accusations against Hillary Clinton and her campaign differently.

He outlined a mendacious scheme, funded by the Clinton campaign, to interfere in a presidential election by feeding misinformation and lies (the fake dossier) into a weaponized FBI and compliant media to distract from Hillary’s email scandal.

However, critically, Durham did not issue criminal charges against most of the principal actors involved, such as Hillary Clinton herself. Although many conservatives were upset by this, Durham explained:

The law does not always make a person’s bad judgment, even horribly bad judgment, standing alone, a crime. Nor does the law criminalize all unseemly or unethical conduct that political campaigns might undertake for tactical advantage, absent a violation of a particular federal criminal statute. Finally, in almost all cases, the government is required to prove a person’s actual criminal intent – not mere negligence or recklessness- before that person’s fellow citizens can lawfully find
him or her guilty of a crime. The Office’s adherence to these principles explains, in numerous instances, why conduct deserving of censure or disciplinary action did not lead the Office to seek criminal charges.

Now take Durham’s explanation, and flip it on its head, and you get Special Counsel Jack Smith’s latest Trump indictment. He’s the anti-Durham, the stereotype of the rabid prosecutor determined to throw enough at the wall until something sticks and to hell with the effect it has on the country.

In contrast to Durham, Smith is criminalizing misinformation (or closely held belief, even if wrong), weak legal theory, free speech, and unsavory campaign strategy. He faces a major hurdle in proving intent (getting past Trump’s sincere belief that there was fraud.) He tries to get around this problem by outlining all of the officials who told Trump he was wrong on election fraud, but that doesn’t mean that Trump believed them.

TRUMP RELEASES STATEMENT ON NEW INDICTMENT

“They come at me from left. They come at me from right—the RINOs, the communists, the marxists, the fascists”

“We will not only survive, but we will be stronger than ever before!” pic.twitter.com/YRf2GqYSrB

— Nick Sortor (@nicksortor) August 2, 2023

In fact, Smith charged Trump with two of the same charges that Durham considered but rejected: 8 U .S.C. § 241 makes it a crime to conspire to deprive a person of his or her civil rights and a conspiracy count under 18 U.S.C. § 371. Smith hit Trump with the civil rights charge under a statute designed to protect blacks after the Civil War. It dates to 1870!

Worse, Smith is bringing this indictment, his second, in the MIDDLE of a presidential election against the (by far) leading Republican candidate in the polls, in an election where that candidate (Trump) is neck-and-neck with his political opponent (President Joe Biden), the man whose appointee appointed Smith. Of course, Smith wants a speedy trial (translation: before voters have a chance to weigh in).

Special Counsel Jack Smith said former president Donald Trump tried to obstruct “a bedrock function of the U.S. government” — the certification of the presidential election results. 

Smith said the Department of Justice is committed to a speedy trial, and that the investigation… pic.twitter.com/sY9i9nnUF0

— The Washington Post (@washingtonpost) August 1, 2023

Legal analyst Jonathan Turley said he was astonished by the latest indictment. He tweeted, “Special Counsel Jack Smith just issued the first criminal indictment of alleged disinformation in my view. If you take a red pen to all of the material presumptively protected by the First Amendment, you can reduce much of the indictment to haiku. I felt that the Mar-a-Lago indictment was strong. This is the inverse. This is closer to the case against former Virginia Gov. Bob McDonnell where Smith was overturned by an unanimous Supreme Court.”

He added, “The press conference held by Smith only deepened the unease for some of us. Smith railed against the January 6th riot and made it sound like he was indicting Trump on incitement. He didn’t. The disconnect was glaring and concerning.”

There is no credible way to argue that Smith’s indictment accusing Trump of trying to criminally interfere in the 2020 election is not interfering in the 2024 presidential election. In addition to the stain of criminal charges, this indictment (and the others) make it harder for Trump to get good legal representation (since the latest goes after his attorneys as unindicted co-conspirators), drain his campaign coffers to fund mounting legal expenses, distracts from his message, divert his energy and time, and could land him in prison for the rest of his natural life.

How about letting voters sort it out? It seems obvious that this prosecution – and the other two – tear at the fabric of this country and, thus, imperil Democracy by destroying citizens’ belief in their government; in short, they accomplish everything Trump is accused of doing. Funny how that works out. Half of this country no longer has faith in the impartiality of key federal institutions, like the DOJ and FBI. Trump’s election nonsense fueled some of that mistrust; Democrats are overreacting and exacerbating it.

This is exceptionally damaging to the country, and that makes Trump not just any defendant. As a result, it would seem that cases based on novel legal theory or legal stretches should not be brought against leading political candidates by their opponents’ appointees in the middle of hotly contested elections. Only a case so prima facie obviously deserving of charges (like a candidate shooting someone) should be brought in the middle of a hotly contested election. If there won’t be almost universal agreement that the charges are warranted, the damage to the country outweighs the gain. Look, the fake elector scheme was a ridiculous idea. However, it had no legal impact (note to Josh Kaul; the indictment alleges that Wisconsin’s fake electors were tricked by the Trump campaign, so back off).

Jonathan Turley is not impressed by Jack Smith’s case.pic.twitter.com/asV3tOzhoO

— Citizen Free Press (@CitizenFreePres) August 1, 2023

Many voters believe there is a two-tiered justice system in this country. And these are voters who normally trust authority and law enforcement! After all, a confidential informant made serious bribery accusations against Joe Biden, and the information was withheld from IRS investigators and not thoroughly investigated. Hillary’s emails, the Russian hoax, it goes on and on. We’re supposed to believe that Joe Biden was just speaking with Hunter’s foreign business partners about the weather. Right. IRS whistleblowers implicate the same DOJ signing off on these charges as complicit in the cover-up. As a result, the prosecutions are being brought by institutions that have already accrued incredible damage upon themselves and make it harder for them to achieve the public credibility necessary for such an extremely unprecedented set of prosecutions.

There are plenty of videos showing Democrats questioning election results. They spent the entire Trump presidency trying to undermine its legitimacy with the Russian hoax!

MUST WATCH 10 minutes of Democrats denying election results.

Democrats objected to the certification of presidential elections in 2000, 2004, and 2016.

Will Joe Biden, Merrick Garland, and Jack Smith arrest these Democrats who made false statements and denied these elections?… pic.twitter.com/fgTz18v5re

— KanekoaTheGreat (@KanekoaTheGreat) August 2, 2023

The three prosecutions against Trump are not created equal. The Alvin Bragg prosecution is universally mocked as a joke even by the liberal media, the classified documents case is the strongest (what was Trump thinking??), and the latest reads like a flustered New York Times op-ed. It’s full of hyperbole and colorful invective but weak on law. Put together, it’s a terrible overreach. We didn’t know we lived in a country where people signed off on the arrests of their political opponents based on weak legal theory.

To be sure, Trump is his own worst enemy. Knowing Damocles’ sword was hanging over his head, he engaged in reckless and, at times, arguably dishonest and certainly incorrigible behavior. The 2020 election-was-stolen nonsense needed to stop a long time ago. Sidney Powell never produced the kraken (whatever that was), election machines weren’t being programmed with secret algorithms, it’s not okay that people attacked cops on January 6, and, no, Trump didn’t win the 2020 election, although Democrats did seize on COVID to loosen voter rules and, at times, allegedly operated above the law (see Racine County Sheriff Christopher Schmaling’s investigation into special voting deputies and Wisconsin’s WEC.)

We’ve argued for months that Trump should move on from this 2020 election narrative and focus on a vision for the future. That’s what voters are seeking. They don’t elect people over past grievances. His road to victory is by focusing on Biden’s economy: Supply chain shortages and prices at the gas pump and grocery store.

However, that doesn’t make Trump’s behavior criminal or warranting prosecution. When it comes to presidential conduct, impeachment was the proper forum. Trump was not convicted in the Senate of January 6 related behavior (it’s interesting that Smith chose not to charge him with anything relating to the January 6 riots). That means that, even if convicted, Trump could still serve as president.

We are a country that, by necessity, revolves around the rule of law. Many voters’ trust in that has been deeply challenged.

Compounding the perception of unfairness, this latest case will be handled by an Obama-appointed judge in a jurisdiction that leans extremely left. It may take the U.S. Supreme Court stepping in to stop it.

As much as conservatives didn’t like Durham’s approach, it strikes us as the correct one. Before we start throwing political opponents in jail like some banana republic based on legal stretches or theories, trust the voters to sort it out. Remember them?