What do you do when you have a political crime, but not a legal one? You keep trying to attach laws to what you consider a political crime. As I already noted in my analysis, Clinton ally Jack Smith took random unrelated laws and then waved his arms a lot while talking about democracy.
Describing publicly conducted election challenges as an effort to “defraud” the United States government turns 18 U.S. Code § 371 into an open-ended tool for suppressing a wide range of political dissent. Treating lobbying or any kind of advocacy as the equivalent of witness tampering weaponizes 18 U.S. Code § 1512 against virtually anyone trying to influence a function of government. Which is to say virtually everyone who is interested in politics. And finally deploying 18 U.S. Code § 241, originally designed to fight the KKK, against Trump and anyone trying to verify legitimate election results makes election fraud into a civil right.
Instead of finding specific crimes committed, Jack Smith took the House Democrat J6 Committee report and then did his best to fit them into some federal statutes somewhere. Including one that bans wearing disguises on highways which was created to fight the KKK.
The New York Times has to be polite and supportive so it describes Smith’s tactics as “novel”.
(Note to non-lawyers, prosecutors using novel tactics is rarely a good thing for the targets, the prosecutors or the country. Laws are supposed to be reasonably straightforward and so are prosecutions. A country where prosecutors are constantly figuring out how do novel things either has bad laws or is a totalitarian regime.)
In accusing former President Donald J. Trump of conspiring to subvert American democracy, the special counsel, Jack Smith, charged the same story three different ways. The charges are novel applications of criminal laws to unprecedented circumstances, heightening legal risks, but Mr. Smith’s tactic gives him multiple paths in obtaining and upholding a guilty verdict.
America isn’t a “democracy”, subverting it is what political parties do, and there was nothing illegal in trying to contest an election.
‘Stories’ aren’t charged, crimes are. But Smith doesn’t have a crime, he has a ‘story’ that he’s trying to criminalize by throwing whatever statutes he has at the wall to see what sticks.
Kimberley A. Strassel quickly shows the implications of this “novel” approach in her Wall Street Journal piece.
Take Mr. Trump out of the equation and consider more broadly what even the New York Times calls Mr. Smith’s “novel approach.” A politician can lie to the public, Mr. Smith concedes. Yet if that politician is advised by others that his comments are untruthful and nonetheless uses them to justify acts that undermine government “function,” he is guilty of a conspiracy to defraud the country. Dishonest politicians who act on dubious legal claims? There aren’t enough prisons to hold them all.
Consider how many politicians might already be doing time had prosecutors applied this standard earlier. Both Al Gore and George W. Bush filed lawsuits in the 2000 election that contained bold if untested legal claims. Surely both candidates had advisers who told them privately that they may have legitimately lost—and neither publicly conceded an inch until the Supreme Court resolved the matter. Might an ultimate sore winner have used this approach to indict the loser for attempting to thwart the democratic process?
And why limit the theory to election claims? In 2014 the justices held unanimously that President Barack Obama had violated the Constitution by decreeing that the Senate was in recess so that he could install several appointees without confirmation. It was an outrageous move, one that Mr. Obama’s legal counselors certainly warned was a loser, yet the White House vocally insisted the president had total “constitutional authority” to do it. Under Mr. Smith’s standard, that was a lie that Mr. Obama used to defraud the public by jerry-rigging the function of a labor board with illegal appointments.
What’s the betting someone told President Biden he didn’t have the power to erase $430 billion in student loan debt. Oh, wait! That’s right. He told himself. “I don’t think I have the authority to do it by signing with a pen,” he said in 2021. The House speaker advised him it was illegal: “People think that the president of the United States has the power for debt forgiveness. He does not,” Nancy Pelosi said. Yet Mr. Biden later adopted the lie that he did, and took action to defraud taxpayers by obstructing the federal function of loan processing—until the Supreme Court made him stop.
If even a former president can be hit with conspiracy charges, what’s to protect a mere congressman, or a failed candidate, or a consultant? For how long did Stacey Abrams falsely dispute her loss in the 2018 Georgia governor’s race and pressure Georgia lawmakers to alter election procedures in ways that might undermine voting integrity on the basis of untruths? Would the advisers who egged her on in that pursuit qualify as co-conspirators, like the lawyers in Mr. Smith’s indictment?
Strassel goes on like this for a while and obviously she has a point. Legally. Politically, it’s another matter.
The Al Capone tax case wasn’t as absurdly corrupt and abusive as in The Untouchables, but it was obviously corrupt and, for once, not by Capone. The presumption was that Capone had skipped justice too many times and that he was a public menace, all true, and that he had to be locked up no matter what.
That’s the reasoning behind supporting the otherwise nightmarish premises that Jack Smith sets out. Democrats are assuming that they won’t be used against them or much of anyone except maybe Trump, some ‘right-wingers’ and then it’ll stop.
Just like it did in the Soviet Union, Communist China, and Revolutionary France.