Jack Smith’s Quest To Convict Donald Trump: January 6 Case Could Be More Difficult To Win Than Mar-a-Lago Prosecution

The target letter sent to President Trump by Special Counsel Jack Smith signals that the prosecutor is readying to cross the charging Rubicon for a second time, this time with respect to January 6. It could prove tougher going, though, than the Mar-a-Lago documents case that Mr. Smith also superintends. The Justice Manual explains that a “target” is a person for whom prosecutors have substantial evidence linking them to the commission of a crime. That person is also viewed by prosecutors as a putative defendant. According to a model letter from that manual, the target is warned that “anything that you do or say may be used against you in a subsequent legal proceeding.” Mr. Trump’s receipt of the letter, which doubles as notice of an imminent indictment and an invitation to testify before a grand jury, marks a new phase in the Department of Justice’s response to the events of January 6, 2021. The DOJ calls the campaign “one of the largest in American history.”Harvey Silverglate, a lawyer for one of Mr. Trump’s attorneys, John Eastman, who was involved in White House deliberations before January 6, tells the Sun that the DOJ “has a lot of nerve doing this to Trump before the Republican nominating convention is over. It is manipulating the next election.” It was Mr. Eastman who, according to testimony given to the January 6 committee, devised the alternate elector scheme, which appears to be something that prosecutors are probing. Mr. Silverglate calls the justice department’s enforcement campaign “prosecutorial misbehavior on a larger scale than I have ever seen in my more than half-decade of practice.” Now, Mr. Trump’s name is set to join the more than 1,000 others who have been charged, many of whom have pleaded guilty. Others await trial. Three have turned to the Supreme Court in search of redress. The charging of the former president will transpire against this chaotic backdrop, which could both help and hinder Mr. Smith’s efforts to secure a conviction. Should Mr. Smith levy a charge for seditious conspiracy, he will benefit from the work other prosecutors have done to grant new life to that Civil War-era statute. Numerous members of far-right militias have been convicted or pleaded guilty to that charge, including the founder of the Oath Keepers, Elmer Stewart Rhodes. Rhodes predicts that Mr. Trump could share his fate — 18 years behind bars, pending appeal — but more dispositive for the former president could be the frequency with which other defendants have invoked the former president as motivation or inspiration. The Center for Responsibility and Ethics in Washington tallies 174 such citations, which it suggests could indicate conspiracy and culpability.An assistant United States attorney prosecuting a group of Proud Boys, Conor Mulroe, told a jury that “these defendants saw themselves as Donald Trump’s army, fighting to keep their preferred leader in power, no matter what.” The DOJ claims that a tweet issued by Mr. Trump on December 19 — “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6. Be there, will be wild” — inaugurated the conspiracy. One thing that DOJ lawyers have not pursued, at least so far, is an indictment, or even a charge, for insurrection. Only one court — a state one in New Mexico — has determined that January 6 was an insurrection. Nobody has been charged with that crime except, after a fashion, Mr. Trump, who was acquitted by the Senate, in an impeachment trial, of “incitement to insurrection.” Mr. Smith’s indictment could focus on the lead-up to January 6 rather than that day itself. Pursuing that tact would likely entail an indictment focused on that scheme to appoint alternative electors, pledged to Mr. Trump, in seven states won by President Biden. That would have been enough to swing the election, but Vice President Pence, citing the Constitution, refused to participate in the effort. The special counsel’s office has also spoken to Georgia’s secretary of state, Bradley Raffensperger, who received a phone call from Mr. Trump urging him to “find 11,780 votes,” the margin by which he was bested by Mr. Biden in the Peach Tree State. The special prosecutor has also spoken to Mayor Giuliani and alternative electors in Nevada, as well as officials from Arizona. Another attorney for Mr. Eastman, Charles Burnham, noted in a statement issued to the press, “Our client has received no target letter, and we don’t expect one since raising concerns about illegality in the conduct of an election is not now and has never been sanctionable.”Mr. Silverglate adds, to the Sun, that Mr. Eastman has requested a meeting with prosecutors, and retains the expectation that should his client be charged, Mr. Eastman will be acquitted “by an appellate court, if not a district one.” Those activities could be charged under United States Code 18 § 371, which bans a conspiracy to commit offense or to defraud America or “any agency thereof in any manner or for any purpose.” Mr. Smith would likely focus on Congress’s counting of the electoral results on January 6. The object of the conspiracy need not be achieved to secure a conviction. Also in play could be United States Code 18 § 1001, which prohibits the “making of any materially false, fictitious, or fraudulent statement or representation.” Those alternate electors sent certificates to Congress — Mr. Smith would have to prove that they did this at Mr. Trump’s instigation — asserting that they were “duly certified.” Two states, New Mexico and Pennsylvania, added caveats that referenced a final decision on the matter. One appealing but risky statute at Mr. Smith’s disposal is Section 1512 (c)(2) of the United States Code, which prohibits “corruptly” interfering with an official proceeding. A provision of the Sarbanes-Oxley Act, it carries a maximum 20-year prison sentence but is the subject of that appeal to the high court mounted by those charged with its violation. Mr. Smith is likely watching that closely. To tread a better trodden path, Mr. Smith could pursue wire fraud charges relating to Mr. Trump’s efforts to fundraise on the basis of a stolen election. That approach, like nearly all criminal prosecutions, will require demonstrating that Mr. Trump acted with criminal intent. To this end, Mr. Smith is reported to have questioned Jared Kushner, Mr. Trump’s son-in-law and former senior adviser, about whether the former president ever acknowledged that he lost the election. Mr. Kushner is said to have maintained that Mr. Trump truly thought he defeated President Biden. That impression was seconded by Mr. Trump’s attorney in his second impeachment trial, David Schoen, who told the Sun that Mr. Trump believes with “100 percent certainty” that he would have won the election save for voter fraud. For his part, Mr. Trump calls this period of his escalating legal peril a “very sad and dark period for our Nation!” and Mr. Smith’s latest a “COMPLETE AND TOTAL POLITICAL WEAPONIZATION OF LAW ENFORCEMENT!”

Jack Smith’s Quest To Convict Donald Trump: January 6 Case Could Be More Difficult To Win Than Mar-a-Lago Prosecution

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