Posted on 11/06/2023 9:52:07 PM PST by SeekAndFind
Two analysts have noted that special counsel Jack Smith might be on shaky legal ground in his federal election-related case against former President Donald Trump.
Neama Rahmani, a former federal prosecutor, said that the Trump charge of corruptly obstructing an official proceeding hasn't been "extensively litigated" over the past several decades, adding that a ruling could come on whether it is appropriate in the former president's case.
Multiple defendants who were charged in connection to the Jan. 6, 2021, Capitol breach have "argued that Congress certifying the electoral votes was not an 'official proceeding' and courts have universally rejected that argument," she told Newsweek last week.
"This bigger question is, what satisfies the 'corruptly' requirement? Is it any criminal conduct, such as trespassing in the Capitol building or submitting fake electors? Or does the corrupt conduct have to relate to the other subsections of 1512, which prohibit destroying or concealing evidence?" she asked.
She continued: "If the corruption requires consciousness of guilt, then Trump can argue that he genuinely believed the election was stolen. Either way, this issue will likely end up before the United States Supreme Court because it is a novel issue that affects hundreds of criminal defendants, including the former president."
Lawfare's Roger Parloff wrote in a recent article that the Department of Justice (DOJ) recently won two "fragile" victories in two cases involving Jan. 6 defendants, and Mr. Smith has "relied on [a] statute" that was used by other prosecutors to charge at least 317 individuals in the Jan. 6 case.
"Smith has relied on that statute and its conspiracy equivalent, 18 U.S.C. § 1512(k), for two of the four counts in his indictment against former President Donald Trump for allegedly conspiring to overthrow the 2020 election," Mr. Parloff wrote. "Those counts, whose legal sufficiency Trump challenged in a motion to dismiss this week, are the most serious leveled against Trump in that case, carrying a maximum 20-year term of imprisonment."
Three appellants in a Jan. 6 case are now petitioning the U.S. Supreme Court to review a recent appeals court ruling that favored the DOJ, he noted, but he said that the D.C. appeals court judges "can't agree about its holdings, and its holdings determine the viability of a 20-year felony that an ex-president and major presidential candidate now stands charged with violating."
"Moreover, at the appeals court level, judges' acceptance of the Justice Department's interpretations of that law have been 100 percent correlated with the political party of the judge's appointer," he wrote.
"If that trend continues, and if either case climbs one more rung up the appellate ladder, the department (and Mr. Smith) faces bleak prospects indeed."
The comments come as constitutional law professor Jonathan Turley warned that the gag order targeting President Donald Trump is "unconstitutional" and said that an appeals court ruling to rescind the order last week was a "quite significant" development.
Several weeks ago, District of Columbia Judge Tanya Chutkan placed a gag order on the former president in the Jan. 6-related case, saying President Trump cannot speak about potential witnesses, court staff, or prosecutors. An appeals court in the district froze Judge Chutkan's order late last week, with oral arguments being set for Nov. 20.
“They could have left it to continue, to continue while they reviewed it, but they decided perhaps in an abundance of caution to order this stoppage until they can give it a full review,” Mr. Turley, a professor for George Washington University, said on Fox News on Nov. 3. “The reason I think this could be quite significant is because I think the order is unconstitutional.”
He added that it is "very odd" to issue the order because the same court "insisted on having this trial before the election, sort of shoehorned it in before Super Tuesday," referring to the key GOP presidential nominating date.
“And everyone in this election is going to be talking about these cases," the law professor said, "except one person under this gag order and that is Donald Trump.”
With the order, the former president "can’t criticize the prosecutors, he can’t criticize witnesses, and special counsel Jack Smith just asked for this order to be expanded in an equally unconstitutional way, and that has drawn the criticism even of the ACLU, which is a staunch critic of Donald Trump, but the ACLU has said look, this is flagrantly unconstitutional," Mr. Turley said, referring to the American Civil Liberties Union.
On Nov. 3, the D.C. Circuit Court of Appeals wrote they were pausing Judge Chutkan's order to provide them more time to consider the former president's request while his appeal continues. The three judges on the appeals court panel were all appointed by Democratic presidents, while Judge Chutkan was appointed by former President Barack Obama.
Judge Chutkan had ruled against President Trump’s attorneys and argued that the gag order was not illegal because the former president is a criminal defendant. The gag order was issued at the request of special counsel Jack Smith's team of prosecutors, who claimed that the former president's criticism of witnesses, the judge, prosecutors, and Washington itself threatened the integrity of their case.
The Trump legal team had argued that the order denied him the right to free speech, especially while he is the leading GOP candidate for president.
Could be?????
Beat me to it
Smith’s budget needs to be zeroed out.
Followed by Smith’s prosecution for Abuse of Power (he was already admonished for that by no less then the Supreme Court in the Enron cases) and Deprivation of Civil Rights Under Color of Law with regard to the President of the United States, something that is breathtaking in its implications.
Jack Smith as of right now is trying to prosecute the greatest political figure of our time on the world stage. Jack Smith couldn’t carry Trump’s jockstrap.
Question a BLATANTLY FRAUDULENT election and what do you get? 20 years.
The gag order was issued at the request of special counsel Jack Smith’s team of prosecutors, who claimed that the former president’s criticism of witnesses, the judge, prosecutors, and Washington itself threatened the integrity of their case.>>> Smith has admitted that he has such a flimsy case that the defendant can threaten the integrity of the case by criticizing the people prosecuting the case. I would file for complete dismissal based on this argument of the prosecution.
Democrat judges are like the German judges under Hitler. Yes, Mein Furher. Whatever you say mein furher.
This is nonsense, IMO. The 'persecution and its team' have no integrity. It's a political witch hunt where the persecution is allowed to put anything it wants out there to media and demands from a lickspittle, complicit judge that he gag the defense entirely. The defendant is innocent until PROVEN guilty in a court of law - this judge and persecution have already made up their minds and judgements before trial has even started on both sides.
A thief steals your car, and when you report it and demand the police do something about it, they prosecute you for conspiring to deprive the thief of an income.
I’m wondering (not really) if there aren’t several states attorneys general have been conspiring with Smith et al regarding trying to keep Trump off the ballot for 2024.
Kinda obvious to me.
“A thief steals your car,...”
...for a few seconds.
You spend the weekend detailing it meticulously.
Wild boars down in the holler seem unusually active.
Notice what — rather, who — is absent in this scenario.
Your analogy escapes me entirely.
OH I GET IT.
The car thief is dead.
No, my analogy is meant to demonstrate the absurdity of prosecuting Trump and supporters for objecting to having the 2020 election stolen.
You mean like stealing an election?
Smith doesn't care if he gets the conviction, the process and muddying up Trump as much as possible is the goal.
That's why Trump's being attacked by multiple, corrupt District and State Attorneys.
They think they're keeping him so busy 'n distracted that his campaign will suffer and fail as a result.
Fools.
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