Shortly after the 2022 midterm elections, Attorney General Merrick Garland named a special counsel to convict Donald Trump of trying to overthrow the United States government.
It was a difficult task. After all, the “evidence” could easily be seen as constitutionally protected speech and actions. But Garland needed a bulldog to bite down on Trump’s leg and not let go until the former president was in jail and the Republican Party was virtually destroyed.
He found his bulldog in Jack Smith. Smith had the zeal to make jailing Trump a crusade, having spent several years prosecuting war crimes at The Hague. He has almost universally been described as “relentless” in pursuit of his quarry.
The left is beside itself with joy — forgetting all the other attempts to get Trump behind bars that ended in embarrassing failure. In essence, the effort to get the perp walk shot of Trump being led to prison in an orange jumpsuit has mirrored that of Bullwinkle’s effort to pull a rabbit out of his hat for Rocky the Flying Squirrel. He never manages to pull a rabbit from his top hat, but the excitement he imparts in making the effort is what makes the gag work.
Garland didn’t have to tell Smith what his job was. The attorney general just wound him up and pushed him toward Donald Trump. Smith knew what was expected of him and what Garland wanted. The result was four indictments that Jonathan Turley believes are a stretch.
Smith has a reputation in conservative circles for stretching the criminal code in high-profile cases, including the prosecution of then-Virginia Gov. Robert McDonnell (R), a conviction that was later thrown out in an 8-0 decision by the U.S. Supreme Court, which rebuked Smith for what it termed the “Government’s boundless interpretation.”
That would certainly be the likely criticism again if Smith relies on Trump’s Jan. 6 speech for criminal charges. That 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.
Smith also could be pursuing claims based on the Trump team’s effort to challenge the 2020 election’s certification, including the possible submission of an alternative slate of electors. That foundation also would be controversial, however.
NROs Andy McCarthy pours cold water on Jack Smith’s latest prosecution of Trump: “He has extravagantly stretched these statues in order to try to capture this behavior and that’s because this is really a proxy for what should have been a political impeachment process.”
Indeed, the left has been trying for more than 4 years to make the January 6 riot into a coldly calculated effort to overturn the election and perpetrate a coup against the United States government.
Related: ‘Election Interference’: Republicans Slam Newest Trump Indictment
In fact, any effort to overturn the presidential election was impossible on its face. The vote was over. The electoral college vote was over. The election had been certified at the state level. The fantasy that Vice President Pence could overturn the electoral college vote was a hail-mary pass that only existed in the mind of a desperate leader looking to hang on to power at all costs.
Smith will use that effort to try to criminalize what may have been stupid but was hardly criminal.
Now, through a special counsel it appointed for this precise purpose, the Biden Justice Department is attempting to use the criminal process as a do-over for a failed impeachment. In effect, Jack Smith is endeavoring to criminalize protected political speech and flimsy legal theories — when the Supreme Court has repeatedly admonished prosecutors to refrain from creative theories to stretch penal laws to reach misconduct that Congress has not made illegal.
What happens over the next 15 months may very well decide the fate of the United States going forward. Both Donald Trump and Joe Biden have it in their hands to save our republic from chaos and mayhem. We can only hope that the “better angels of our nature” prevail in the end and both men realize their duty to the country.
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