There is nothing to lose, and everything to gain, from a full-on Trump offensive.
The Charge is the Fraud
The indictments of Donald Trump are tissue thin and intended only to harass him and disrupt the 2024 election.
The legal claims stipulated in Jack Smith’s latest indictment are spurious, constitutionally unfounded, and patently unlawful. The overriding theory of Smith’s case is that Donald Trump conspired to defraud the United States and obstruct an official election proceeding as president. The Smith indictment further stipulates a “conspiracy against rights,” which again goes to the President’s alleged scheme to knowingly conspire to deprive Americans of their right to vote and have their votes counted fairly. As will be discussed below, each one of these claims are easily discreditable, and have no basis whatsoever in law or fact.
Under count one, 18 U.S. Code § 371, the United States improperly brought a criminal charge for fraud using a statute that the Supreme Court has circumscribed repeatedly over many years to apply specifically to financial crimes only. Thus, no matter how many times Jack Smith insists and repeatsthat President Trump “knowingly” deceived the American people of election fraud does not make it true. Furthermore, Jack Smith does exactly what he accused President Trump and his cadre of “co-conspirators” of doing in his indictment: by “reverse engineering” statutes and shoehorning them into criminal statutes for which they were never intended, Smith manifests wholly novel and ahistorical legal theories, out of thin air, without even a gesture to the countervailing historical and legal record for which they were originally designed and to which they have only ever been applied by courts.
Even under the broader definition of “defraud”—i.e. in the anomalous instances where this statute might be applied outside of the financial crimes context—there is still no basis for these particular charges. It will be impossible for the prosecution to prove beyond a reasonable doubt that the President was working to “interfere with or obstruct one of [the government’s] lawful functions by deceit, craft, or trickery, or by means that are dishonest,” since President Trump always was—on the advice of competent counsel—following the constitutionally-permissible and lawful avenues to challenge the election. (United States v. Nersesian, 824 F.2d 1294, 1313 [2d Cir. 1987].)
Similarly, the charge under 18 U.S.C. § 241, a Reconstruction-era statute under which Douglas Mackey was recently convicted for tweeting that Hillary Clinton supporters could text their votes instead of voting at the polls, presupposes that the actions taken by the President were dishonest in nature. The Supreme Court read into this statute the requirement of a specific intent to deprive another of a right or interfere with another’s rights. See United States v. Guest, 383 U.S. 745. For the same reasons as above, such a burden cannot possibly be proven. President Trump was acting under his belief that the election was improperly conducted and took the steps necessary within the bounds of the Constitution to challenge the results.
With all constitutional arguments, we should begin with the language from the document itself. Paragraph two of Article II, Section I provides as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. [Emphasis added.]
What should be apparent, even by just a cursory reading of the text, is that, contrary to widely-held belief, there is no constitutional requirement of state legislatures to provide for choosing electors by popular election. Quite the contrary: as John Eastman persuasively argued in his legal analysis submitted to the President on November 5, 2020, in the early history of the republic “most state legislatures selected the state’s presidential electors themselves.” Only after 1824 did the majority of state legislatures begin choosing electors by popular election. However, that change did not in any way, shape, or form transform the fundamental plenary – i.e., unqualified – power by state legislatures to make a determination of how electors can be chosen.
This position was reaffirmed in the decision, McPherson v. Blacker, 146 U.S. 1, 35 (1892), in which the Supreme Court held: “whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time.” This view was upheld in more recent times in Bush v. Gore, 531 U.S. at 104 (2000), wherein the Court said: “The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.”
Eastman elaborates the undisputable view that if state election law procedures are ignored or flagrantly violated, as was the case in the 2020 general election, the Legislature has the duty to exercise its plenary power over the administration of election procedures. Here again, it is appropriate to quote him at length:
To be sure, “at any time” would likely not allow the Legislature to pick its own slate of electors after the results of a fair election which had been conducted pursuant to the Legislature’s existing statutory procedures, merely on the grounds that the Legislature would have preferred a different outcome … But such is not the case when the existing procedures were not followed, and when significant statistical anomalies raise serious questions about whether the election was fair. In such cases, the “manner” for choosing electors set out by the Legislature was not followed; the constitutional default of the Legislature exercising its plenary power – or, rather, resuming that power – is therefore again at the forefront.
So, as Eastman notes, the question becomes under what circumstances is the Legislature permitted to select its own, alternative slate of fair electors consistent with their constitutionally prescribed plenary power. Both the text of the Constitution and relevant statutory authorities, such as Section 2 of Title 8, provide that the Legislature has plenary power for choosing electors – which is the constitutional default. (Art. II, Section 1 of the Constitution reads as follows: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”) Whenever the method for choosing electors fails to comply with the procedures expressly outlined by the Legislature, both the Constitution and Section 2 of Title 8 authorizes the Legislature to appoint electors or craft an alternative method for appointing the State’s slate of electors, again, in accordance with the Legislature’s plenary power.
As Eastman elaborates in his second memorandum, numerous “important state election laws were altered or dispensed with altogether in key swing states and/or cities and counties.” These laws were designed to reduce election fraud. So, the fact that they were dispensed with in the lead-up to the 2020 general election is especially problematic from a constitutional perspective. Among the more notable state laws changed, which were fleshed out in greater detail in an earlier article discussing the evidence of election fraud, included a Georgia law that “altered signature verification requirements via an unauthorized settlement agreement.” (See Trump v. Kemp et al. [N.D. Ga., filed Dec. 31]). In Pennsylvania, the violations were even more egregious. Again, here it is appropriate to quote Eastman’s findings verbatim: “Following a collusive suit brought by the League of Women Voters against the Democrat Secretary of the Commonwealth seeking to require that absentee ballots not passing the signature verification process be given notice and an opportunity to cure, the Secretary unilaterally abolished the signature verification process altogether, issuing a directive that not only was it not required, it was not even permitted. She then filed an emergency writ action with the partisan-elected Supreme Court to ratify her elimination of that statutory requirement.” (See Trump v. Boockvar et al., [S. Ct., filed Dec. 21].)
Other notable violations were observed across other key battleground states. In Wisconsin, for example, as noted in two cert petitions, Trump v. Biden, filed on Dec. 29, and Trump v. Wisc. Elections Comm’n, filed on Dec. 30, the state used unmanned drop boxes, employed so-called “human drop boxes,” and allowed election officials to add missing information to absentee voter or witness declarations, all contrary to law. In Michigan, absentee ballots were mailed out to every registered voter and remote drop boxes were established only in heavily Democratic precincts, also in express violation of statutory procedure. Other evidence of fraud was seen in states like Arizona and Nevada, which reduced election registration and signature inspection requirements, making their elections more susceptible to fraud as a result, again in violation of federal law. These are just a select handful of a mountain of illegalities that rendered irreparable damage upon election integrity, and for which, as a result of that fraud, would lawfully permit state Legislatures to exercise their plenary power, as is their constitutional right, to make post-election changes to the appointment of electors, with the aim towards ensuring a fair election.
At the heart of the obstruction charge rests an ongoing dispute surrounding the applicability of the statute in question, 18 U.S.C. § 1512©, to the case against President Trump, as well as over three hundred January 6th protestors. While a DC Circuit panel upheld 2-1 the applicability of the charge for January 6th defendants, reversing a district court’s dismissal of the charge, it is likely that the statute will be reviewed again, potentially by the Supreme Court. In his dissent, Judge Katsas asserts several compelling reasons supporting the view that the government took an overbroad view in its construction of the relevant statute (which was originally part of the Sarbanes-Oxley Act, designed to mitigate the disastrous effects of widespread accounting fraud in the aftermath of the Enron scandal, an issue completely unrelated to alleged January 6th criminality):
In my view, the government’s interpretation is mistaken … The government’s reading is also hard to reconcile with the structure and history of section 1512, and with decades of precedent applying section 1512(c) only to acts that affect the USCA integrity or availability of evidence. Moreover, the government’s reading makes section 1512(c) implausibly broad and unconstitutional in a significant number of its applications. Finally, if all of that were not enough, these various considerations make the question presented at least close enough to trigger the rule of lenity. United States v. Fischer, 64 F.4th 329, 363 (D.C. Cir. 2023).
This statute has drawn significant criticism, due to its potentially broad implications, so much so that the Bush administration issued interpretive guidance, on a far less critical issue, to clarify the statute’s application. Even still, scholars have noted how “this guidance fails to articulate the degree of criminal state of mind that ‘corruptly’ implies.” Daniel A. Shtob, Corruption of a Term: The Problematic Nature of 18 U.S.C. §1512(c), the New Federal Obstruction of Justice Provision, 57 Vanderbilt Law Review 1429, 1432 (2019).
Even if one is still unpersuaded by the void-for-vagueness argument on due process grounds, the statute at the heart of Counts 2 and 3 (the conspiracy to obstruct and the obstruction charge – the sole non-conspiracy charge), requires the prosecution to prove beyond a reasonable doubt that President Trump acted “corruptly.” 18 U.S.C. § 1512(c)(2). The court does not even have to go as far as carrying the meaning of “corruptly” to require a “consciousness of wrongdoing,” – i.e., an evil intent – to obviously bar the applicability to President Trump after the election. See Arthur Andersen LLP v. United States, 544 U.S. 696 (2005). Even if the court simply adopts the less onerous “acting with improper purpose” and “dishonesty” standard, the prosecution has an extremely high bar to meet. United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013) (“Acting ‘corruptly’ within the meaning of § 1512(c)(2) means acting ‘with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct.’”)
Neither one of the “corruptly” standard or “dishonesty” standard can be attributed to President Trump, who by all accounts clearly, honestly – and (perhaps most important) reasonably – believed there was fraud in the 2020 Presidential election. President Trump was also honestly following the advice of trusted, qualified counsel to explore the legal, constitutionally-permissible ways to ensure the election was properly conducted and decided. After all, as the Executive, it was his constitutional responsibility to “take Care the laws are faithfully executed.”
Accordingly, the idea that President Trump can be held criminally liable for each of the aforementioned counts stipulated in Jack Smith’s complaint flies in the face of the law and the facts. Nothing in the facts supports the view that President Trump had a culpable state of mind, nor do the laws themselves implicate the kind of criminal behavior alleged in the Complaint. In fact, the opposite is true: the facts overwhelmingly support the view that President Trump personally believed the election was fraudulent. Even stronger perhaps is the view that Jack Smith is weaponizing the justice system by reverse engineering allegations of criminal liability into laws that never were intended to implicate the sort of conduct alleged at issue, all of which reveals itself to be a bald-faced attempt to trample over the rule of law to persecute a political opponent.
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