Alan Dershowitz – Jack Smith could face indictment by his terms

Alan Dershowitz, legal commentator and free speech advocate, recently said on his show that Special Counsel Jack Smith could face indictment himself, if any prosecutor were to apply to him the standards he applied to former President Donald J. Trump to obtain the Trump indictment.

Alan Dershowitz gives his analysis

The half-hour episode of “The DerShow” is available here.

Alan Dershowitz opens by calling the Trump indictment “one of the strangest documents I have ever read.” The chief predicate of the indictment, says Dershowitz, is that Trump lied to the public.

“But Jack Smith lied!” he says. In recounting Trump’s January 6, 2021 speech to his supporters, Smith left out the words peacefully and patriotically. Smith did this to support his contention that Trump orchestrated a conspiracy to obstruct Congress’ electoral count exercise. “A lie by omission, under law,” says Dershowitz, “can be just as serious as a lie by commission.”

The commentator turned next to the “Conspiracy Against Rights” count – meant, he said, to attack the Ku Klux Klan. “Conspiracy against rights” can include threatening to enjoin or otherwise hinder the free exercise of another person’s Constitutional rights. By that standard, Jack Smith could face that precise charge, should Trump prevail on appeal of any conviction. Which Alan Dershowitz believes would happen, because everything Trump actually said and did, constitutes protected speech.

Continuing, he said he doesn’t expect Smith ever to face indictment. But he mentions Smith’s liability under his own standards, to illustrate how “open-ended and broad” the indictment is. “This is the first indictment I know of,” he said, “that turns political lies into crimes.” And if the law prosecuted every politician who lied on campaign or in press conferences, Congress and State legislatures would meet in prison.

Honest Abe

Americans honor only two of their Presidents with the accolade of being scrupulously honest. These are George Washington and Abraham Lincoln. Thus one might assume every other President has been dishonest in a significant number of instances. So, asks Alan Dershowitz, shall we prosecute every living former President?

Dershowitz isn’t the first prominent attorney to criticize this indictment. Will Scharf, former Assistant U.S. Attorney for eastern Missouri, said much the same.

About the image

This portrait titled ” Alan Dershowitz in 2018” by MSNBC is licensed under CC BY 3.0 .