Special Counsel Jack Smith could indict former President Donald Trump for his role in the Jan. 6, 2021, Capitol riot any day now.
As of yet, the details of what Smith is expected to charge Trump with are unknown.
Former White House Press Secretary Jen Psaki advises Democrats to focus their messaging on Trump’s effort to block Joe Biden from being certified as the winner of the 2020 election in the months leading up to the riot.
“Trump engaged in a sprawling and systematic effort to steal the 2020 election,” The New Republic quotes Psaki as writing. “We have heard and seen evidence that these efforts included defrauding the American public, subverting democratic institutions, and coordinating a pressure campaign at the local, state, and federal level to overturn the will of the people.”
Psaki continued: “We have heard and seen evidence that these efforts included defrauding the American public, subverting democratic institutions, and coordinating a pressure campaign at the local, state, and federal level to overturn the will of the people.”
Trump Expected to Be Charged Under Reconstruction-Era Law
Trump is expected to be charged under Reconstruction-era laws such as the 1871 Ku Klux Klan Act claiming that Trump’s effort to put together alternate slates of electors threatened lawful votes in states that went for Joe Biden.
“Essentially, Trump could be charged for entering a conspiracy to deprive persons of their rights guaranteed under the Constitution and that conspiracy caused bodily injury, which would increase the penalty for the unlawful conspiracy,” Georgia State University Law Professor Anthony Michael Kreis told Salon.
Kreis suggests that Smith could claim that Trump knew he lost the election and that “he worked to overturn the election contrary to the law’s guarantee of equal protection and due process for voters. That conspiracy fomented violence on January 6th and injuries resulted.”
George Washington Law School Professor Jonathan Turley notes that Democrats previously tried challenging the electors won by Republican presidents and suggests Smith would have a weak case. It also would be partisan because of past Democrat challenges. In 2017, Reps. Shiela Jackson Davis and Barbara Lee challenged electors that Trump won. Then in 2005 Democratic Ohio Rep. Stephanie Tubbs Jones and California Sen. Barbara Boxer challenged George W. Bush’s electors from Ohio. And in 2001 Rep. Alcee Hastings challenged the electors from his state of Florida that pushed Bush over the top.
Smith Faces Problems if He Indicts Donald Trump
If the case relies on Trump’s speech from that day the charges could run into the buzzsaw of the First Amendment on appeal.
Trump said in the speech: “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore … I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
Turley notes that Trump’s “speech is entirely protected under the First Amendment and governing case law, including Brandenburg v. Ohio. Any count based on Trump’s speech would likely be overturned on appeal.”
Turley notes that prior indictments have only made Trump even more popular with his base as it has circled the wagons around him.
Trump faces a likely upcoming fourth indictment in Georgia under that state’s Racketeer Influenced Corrupt Organizations (RICO) law. The likely charges that will be brought in a January 6 case will be harder to prove in court than the classified documents case, which is not based on an esoteric legal theory.
Most of the litigation that Trump faces are based on hard-to-prove legal theories. Democrats should focus on the ballot box and on competing with Trump fair and square.
“We have seen time and time again that the best way to defeat Donald Trump is not in a court of law but at the ballot box, and the effort is better expended in reminding voters that he is a fraud: Hardly a populist, he governed as a bog-standard Republican plutocrat,” Alex Shephard writes in The New Republic.
John Rossomando is a defense and counterterrorism analyst and served as Senior Analyst for Counterterrorism at The Investigative Project on Terrorism for eight years. His work has been featured in numerous publications such as The American Thinker, The National Interest, National Review Online, Daily Wire, Red Alert Politics, CNSNews.com, The Daily Caller, Human Events, Newsmax, The American Spectator, TownHall.com, and Crisis Magazine. He also served as senior managing editor of The Bulletin, a 100,000-circulation daily newspaper in Philadelphia, and received the Pennsylvania Associated Press Managing Editors first-place award for his reporting.
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