By ALAN DERSHOWITZ FOR DAILYMAIL.COM
I can imagine the sound of champagne bottles popping from Martha’s Vineyard to Washington D.C., as President Donald Trump‘s haters celebrate this third, historic federal indictment.
If only they were able to drop their partisan blinders and see the grave damage this legal lunacy is doing to our country!
On Tuesday, U.S. Special Counsel Jack Smith revealed felony charges against the former president for allegedly subverting the will of the American people and attempting to overturn the results of an election.
Yes, Trump’s behavior following his 2020 loss was wrong. But was it criminal?
Not on the basis of what I’ve seen thus far.
Have no doubt, corrupting the U.S. justice system to punish a former president and current candidate nudges the country ever closer to tribalism, chaos and collapse.
If the attorney general appointed by the incumbent president authorizes the prosecution of the president’s chief election rival, the evidence of a serious crime should be overwhelming.
His guilt should be clear beyond doubt, so as to avoid any reasonable suspicion that the prosecution was motivated, even in part, by partisan consideration.
The paradigmatic ‘gun’ must indeed be ‘smoking’.
I call this the ‘Nixon standard,’ under which the guilt is so evident that even the defendant’s political allies — and certainly less sectarian independents—are satisfied that it is fair.
Manhattan District Attorney Alvin Bragg’s indictment of Trump for falsely reporting the payment of hush money to adult firm star Stormy Daniels is scandalously inept. The legal contortions Bragg performed to criminalize a possibly immoral, yet perfectly legal, pay off are too convoluted to recount here.
Evidence related to Trump’s alleged illegal retention of classified materials at Mar-a-Lago are strong, but the supposed crime itself is rather technical and relatively minor. Hillary Clinton, who stored highly sensitive government documents on her ‘home brew’ server, never faced federal charges, neither did President Biden, Vice President Pence or Bill Clinton’s former National Security Advisor, Sandy Berger.
Why, then, charge the candidate who is in a virtual tie with the incumbent against whom he is running?
The current indictment involves far more serious accusations, but the evidence seems speculative.
In order to establish the underlying charges, the government would have to prove beyond a reasonable doubt that Trump himself actually knew and believed that he had lost the election fair and square.
That he intended to subvert the will of the people.
I doubt they can prove that.
I did not believe that the government would bring this indictment unless it had corroborated evidence that Trump had told people that he knew he had been defeated and was challenging the results for fraudulent and corrupt purposes.
But from what I have read and heard; they don’t appear to have any such evidence.
When his son-in-law Jared Kushner was summoned before the grand jury, it was widely expected that he might provide that smoking gun, but he apparently said the opposite: that Trump actually believed he had won.
Others who spoke to Trump during the relevant time period also believe that he was persuaded that the election had been stolen.
I think he is wrong, but it’s not what I or the grand jurors think: it’s what Trump himself believed.