The eminent legal scholar Alan Dershowitz spoke up in a discussion hosted by Fox News on the recent Trump indictment brought by Biden’s Justice Department over January 6th. Professor Dershowitz remarked, “I think he [Trump] may lose in the United States Court of Appeals for the DC Circuit but I think he will probably win in the United States Supreme Court if they grant review.” Dershowitz opined that the Supreme Court “should grant review. When you have the president of the United States and his people going after his opponent in a political election it has to be beyond reproach- it has to be without any problems, it has to be the strongest case in history. This does not meet that standard.”
In Dershowitz’s opinion, all Trump needs to prove is that “he understood and believed – whether he was right or wrong – [that the election was stolen or rigged against him].” Dershowitz commented that the trial beginning in DC is “not certain” and that he anticipates that Trump’s lawyers will make a motion to move the venue to “northern Virginia where the jury pool will be fairer…and you could move it further to southern Virginia where it [the jury pool] is much more even [handed] and you can move it to an adjoining state.”
Dershowitz recommended that Trump’s legal team also would move “to dismiss the indictment on First Amendment grounds, moving for a change of venue, they will probably argue some form of selective prosecution but the key point is that the prosecution must convince the jury of Trump’s subjective belief and people who know Trump say he really believed it [that the election was stolen].”
The shabby second indictment of Donald J. Trump by Jack Smith effectively criminalized getting legal advice, challenging the legal perspective of some of the lawyers, and a whole host of other traditionally protected activities. For instance, within the indictment itself, there is mention of Trump re-tweeting a post calling certain legislators cowards, which is a clear First Amendment free speech right, as evidence of a criminal conspiracy. Michael Tracey, a journalist, pointed this absurdity out in his own tweet.
According to Jack Smith, it's a criminal conspiracy to re-tweet a post labeling the Republican leaders of the Pennsylvania legislature cowards pic.twitter.com/Qk6VutP4jt
— Michael Tracey (@mtracey) August 2, 2023
Stephen Miller, a former senior adviser to Trump and a lawyer, commented that this indictment is evidence that the Biden administration is “outlawing political opposition.”
They are outlawing political opposition. https://t.co/U5lNaj5AMd
— Stephen Miller (@StephenM) August 2, 2023
Former US Attorney Brett L. Tolman had similar observations: “I’ve now read the new Indictment twice. It is criminalizing speech, thought, legal (right or wrong) positions, and disinformation. It also is shockingly manipulative of statutes and theories which require enormous legal wrangling. Further, it ignores advice of counsel defenses and mens rea [mental state of defendant] requirements. But the most glaring thing is what’s not in the indictment—the charges of treason, sedition, or any other serious, fact based, count outlining genuinely criminal behavior.”
Further, it ignores advice of counsel defenses and mens rea requirements. But the most glaring thing is what’s not in the indictment—the charges of treason, sedition, or any other serious, fact based, count outlining genuinely criminal behavior.
— Brett L. Tolman (@tolmanbrett) August 1, 2023
Robert Barnes, a constitutional lawyer, summarized the indictment when he wrote that it charges that “Donald Trump conspired with lawyers and advisors to expose the Constitutionally-fraudulent election of 2020. Saying the Emperor is naked is now a crime.”
#TrumpIndictment translated: Donald Trump conspired with lawyers and advisors to expose the Constitutionally-fraudulent election of 2020. Saying the Emperor is naked is now a crime.
— Robert Barnes (@barnes_law) August 1, 2023