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August 6, 2023

The juxtaposition of the Department of Justice’s handling of Hunter Biden with its outrageous treatment of Donald J. Trump justifies Scott Adams’s view: “We can now see all of the machinery of government, from influence peddling to fake news to intel-supported hoaxes to political persecutions.” Diving even deeper, as have Jonathan Turley, James Freeman, Dan Bongino, and David Samuels, it’s beginning to look as if Barack Obama knew of Hunter’s corruption and the danger it posed to national security and did nothing about it. In exchange, he’s serving a third term as president behind the scrim while the demented present officeholder serves as a front.

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Giving Hunter a pass does more than underscore the Administration’s double standard, it explains why the Democrats worked so tirelessly to weaken 2020 election procedures to advance to the highest office a man demonstrably unfit to carry out its duties: They had him on a short rope — he either ceded the powers of office to Obama or Hunter’s illicit dealings would land both Hunter and him in jail.

The Latest Indictment of Trump

The latest indictment of Trump — I believe there have been three in the past four months — is not only clearly political, designed to obstruct his campaign, but it is seriously flawed as a legal matter. Reams have been published on this point, but I think the most complete is that of Will Scharf.  I’ll summarize his key points but urge you to read it all.

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The charges depend on Trump’s state of mind and “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.” More troubling is that “Jack Smith’s theory of the case necessarily requires criminalizing political speech,” a core protection of the First Amendment. Trump is surely not the first candidate to claim elections were stolen from them: In 1824 Andrew Jackson claimed John Quincy Adams cheated him out of the election. More recently Hillary Clinton and Stacey Abrams, to name but two, made that claim.  “After the 2000, 2004, and 2016 elections Democrats attempted to interfere with the electoral count process” and one can argue that Smith’s theory of the case would make those claims and acts criminal matters. The capper is Smith’s using a statute designed to deal with the Ku Klux Klan — a statute criminalizing efforts to deprive people of their rights under the Constitution. Recent cases in the Supreme Court make clear that the statute is not violated unless the prosecution proves that Trump and his co-conspirators “acted with specific intent to deprive people of the right to have their votes counted’ (emphasis added).  The count alleging fraudulent conspiracy is no better than the other counts: 

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. 

Nor does the Obstruction Count justify the prosecution, for the same inability to prove intent to “obstruct an official proceeding” to benefit himself by means he knew to be unlawful.

Of course, whatever infirmities there are in this case, the most obvious is that the facts in this case were known in 2020, and timing it now while demanding a speedy trial has “all the appearances” of Smith arrogating to himself the right to pick the next president.

A similar but shorter take from Professor Alan Dershowitz, who is skeptical of Trump getting a fair trial in D.C. “The Supreme Court will rule it unconstitutional, because there was no actual speech to defraud an election or interrupt congressional procedure. There are no actions he took. No one is prepared to testify there was. You are allowed to contest an election. You are allowed to doubt the results of the election.”