Even for those Americans who are not especially fond of former President Donald Trump or his politics, the weaponization of the legal system against him may have now gone too far. The third and latest Trump indictment centers very much around political speech. It is by far the most chilling because it attempts to criminalize the freedom every American has to question the result of an election – whether that questioning is credible or not. Certain Democrats have done so numerous times in recent decades; some of them to this day continue to delegitimize the outcomes of past elections. Has special counsel Jack Smith crossed a dangerous line, then? Could he reasonably be described as overzealous? A couple of previous high-profile prosecutions tell us that such a label is justified.
Jack Smith – a History of Overreach
Bob McDonnell is a Republican former governor of Virginia. In 2014, Jack Smith indicted McDonnell and his wife on multiple counts of corruption, including extortion, conspiracy, and fraud. A jury convicted McDonnell on each of the 11 counts he faced and his wife, Maureen, was found guilty of eight counts. The Fourth Circuit Court upheld McDonnell’s conviction when he appealed it, but, in 2015, the Supreme Court issued a stay that kept the governor out of jail. “Justices on both sides of the ideological spectrum had expressed skepticism about the rationale behind the conviction,” said a CBS News report from June 2016, “cautioning that the case presented a potentially slippery slope for criminalizing politicians’ behavior when it comes to exerting political influence for supporters.”
Essentially, the justices observed that the activities for which McDonnell had been investigated and indicted amounted to nothing more than politics as usual. How often do politicians grant favors to their top donors? It has happened – and continues to happen – more times than one could count.
Is there an argument to be made that such behavior can be unethical? Maybe, but when has politics ever been totally ethical? We could go back at least as far as the Roman Senate and still not pinpoint such a time. McDonnell was ruthlessly pursued for something that was and still is, for better or for worse, common practice on the campaign trail. In 2016, the Supreme Court unanimously overturned McDonnell’s conviction. Writing the court’s opinion, Chief Justice John Roberts slammed “the Government’s boundless interpretation of the federal bribery statute.” The DOJ considered pursuing the case but opted to walk away.
Going back to a few years earlier, Jack Smith went after John Edwards, a Democrat and former senator who ran for president in 2008. According to media reports, even some Justice Department officials were not convinced of the strength of the case against Edwards. Still, Edwards went on trial in 2012, having been indicted on six counts related to allegedly accepting illegal campaign contributions. A jury couldn’t reach a verdict on five counts and Edwards was acquitted of the sixth. Again, the DOJ opted out of retrying the case.
Also involved in both the McDonnell and Edwards indictments was trial lawyer David Harbach. When Donald Trump appeared for his August 3 arraignment on charges related to the 2020 presidential election, Harbach spoke for the prosecution. Jack Smith was present but kept a low profile. Harbach and Smith, one might say, are hardly the dynamic duo of the Justice Department.
Have they overstepped once again with the indictment of Trump? A lot of legal experts are saying they have. Former Harvard Law School professor Alan Dershowitz said that even if Trump is convicted – which is quite likely, considering he will face a jury selected from the population of deepest blue Washington, DC – that conviction will not meet Supreme Court standards. Jonathan Turley, another former law school professor, decried a “free speech-killing indictment.”
One thing is clear; if Jack Smith prevails and Trump is convicted – and if that conviction is not overturned by the Supreme Court – both the scope and life expectancy of the First Amendment will have been severely curtailed. If one cannot doubt the result of an election without fear of criminal prosecution, then democracy exists only as a vague concept or – as it has been so many times throughout history – a meaningless word used by tyrants to give themselves a veneer of respectability.
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