A Weekly Dose of President Trump - Trump Family Train August 1, 2023

Today's New York Post cover of lying Joe.

🇺🇸 Mike Davis 🇺🇸
@mrddmia

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Dear House Republicans:

Appropriation rider:

“No federal funds may be used on or before November 7, 2024 for the prosecution of any major presidential candidate.”

The American people—not a Biden prosecutor, Obama judge, and Trump-deranged DC jury—get to decide who’s President.

9 juan juan

Funny.

Good morning.

Good morning Gran. You are welcome.

Cherokee is a Husky and Zeus is a German Shepherd.

Spoil them ..yes. Such good boys.

We have a fenced in back yard that is about 400 x 500 feet. They loved running around.

Easier to read than on the NYP front page.....

Kari Lake

@KariLake

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3h
“EXCLUSIVE: Capitol Police Chief Called Jan 6 Events ‘A Cover Up’ in Tucker Carlson Interview HIDDEN By Fox News”

This is incredible reporting by
Raheem Kassam

Brave independent journalists continue to unravel the truth about what REALLY happened on 1/6

https://thenationalpulse.com/2023/08/02/exclusive-capitol-police-chief-called-jan-6-events-a-cover-up-in-tucker-carlson-interview-hidden-by-fox-news/

Jason Miller and Matt Gaetz liked

Will Scharf
@willscharf

My Take on the New Trump Indictment

Special Counsel Jack Smith’s new indictment against President Trump seeks to criminalize political speech and to criminalize taking incorrect legal advice. Americans of all political stripes should be furious and deeply concerned by the course Smith has set this country on.

I have reviewed the new Trump indictment closely, and sadly, it is exactly what we have come to expect from Smith’s team—a highly political document, riddled with legal and factual infirmities. This indictment should have never been brought to a grand jury in the first place. Moreover, its timing, particularly in light of Smith’s statements and actions in the Trump documents case, is so highly suspect that it casts a political pall over the whole case.

I’m going to run through the various issues I see with this indictment. Apologies in advance for the length of this post, and for some of the more technical aspects of it. Happy to answer any questions.

The Indictment

Smith’s indictment contains four counts against Trump.

The first, brought under 18 U.S.C. § 371, alleges that Trump conspired to defraud the United States “by using knowingly false claims of election fraud to obstruct federal government function by which those results are collected, counted and certified.”

The second and third allege conspiracy to obstruct an official proceeding and the actual or attempted obstruction of an official proceeding, both in violation of subsections of 18 U.S.C. § 1512.

The fourth alleges that Trump committed a “conspiracy against rights,” by knowingly conspiring to deprive Americans of their right to vote and have their votes counted, in violation of 18 U.S.C. § 241.

Having read the indictment, having followed January 6-related cases closely, having read extensive news coverage, and having spoken to others with experience in this area of the law, I do not believe that any of these charges can fairly be proven beyond a reasonable doubt in front of a fair judge and jury. Additionally, I expect that, were this case to reach the Supreme Court, the Court would reject Smith’s theories of liability on all or at least some of these counts, as it did unanimously with his prosecution of former Virginia Governor Bob McDonnell.

Smith and his team did a real disservice to the cause of justice by bringing this indictment.

(1) Trump’s State of Mind

In the Trump documents case, we’ve already seen how thorny issues of intent can be. There, many of us have argued that, in light of the President’s rights and responsibilities under the Presidential Records Act, it is essentially impossible for Jack Smith to prove that Trump knowingly violated the Espionage Act subsection charged.

Here, we have a similar issue. For all four of these charges, Smith needs to prove beyond a reasonable doubt that Trump knew that his claims about election integrity were false, and that he knew that the legal theories his team advanced were not viable.

Not just that these claims were false, not just that Trump might have known that they were false, or that Trump should have known that they were false. If Trump did not actually know that his claims were false and the theories he was advancing were wrong, then I do not see how he can be found guilty of any of the four charges in the indictment.

While Smith points to a few statements Trump allegedly made to others at various stages of his election challenges where he impliedly (if you squint hard enough) appears to concede defeat, the overwhelming gravamen of Trump’s statements and actions indicate that he believed that his claims—both factual about the conduct of the election and legal about potential remedies—were true. Considering the record as a whole, how does one go about proving that Trump didn’t believe his own arguments?

Moreover, three of these counts charge conspiracy. For those counts, Smith likely has to prove that Trump’s alleged co-conspirators also knew that the claims they were advancing were false. And that Trump and his alleged co-conspirators all agreed, knowing that the claims were false, to press ahead anyway. Given the list of co-conspirators, their activities during the time period in question, and the interactions between them and Trump that have already been made public, I think the opposite is likely the case.

In short, proving the requisite intent on the part of Trump and his alleged co-conspirators on all of these charges is likely impossible, at least in front of a fair jury in a fair courtroom. This indictment should never have been brought.

(2) First Amendment

Others have made this point publicly already, so I won’t belabor it. To put it simply, Jack Smith’s theory of the case necessarily requires criminalizing political speech. This is core, protected activity under the First Amendment, and the legal implications are truly scary for our democracy.

Is any public challenge to a certified federal election a criminal act? In Jack Smith’s telling, the answer is probably yes. At what point do election challenges become criminal? Based of Jack Smith’s theory of the case, the answer to that is entirely unclear, meaning that the very fact that this indictment was brought may have a deeply chilling effect on protected speech in years to come.

Hillary Clinton, Stacy Abrams, and many, many others have claimed for years that their elections were stolen from them. Stacy Abrams continued her efforts to challenge her defeat to Brian Kemp long after the results were clear. Andrew Jackson claimed that John Quincy Adams cheated him out of the Election of 1824. After the 2000, 2004, and 2016 elections, Democrats attempted to interfere with the electoral count process. Did those actions constitute a Conspiracy Against Rights under § 241? Under Jack Smith’s theory of the case, I think the answer is unclear, but possibly. Taking political speech and political acts of this sort and shoehorning them into criminal statutes that have never before been used in this way is terrifying. Political candidates should not live in fear of prosecution by their political opponents for stating their views about their elections.

Jack Smith, in his rush to “get Trump,” has done serious violence to our Constitutional order and Bill of Rights.

(3) Requisite Intent under § 241

Section 241 is a statute that was originally designed to deal with violence against black voters by the Ku Klux Klan, and other similar efforts to deprive people of their constitutional rights. Jack Smith’s use of it here is outrageous on its face, designed to inflame perhaps more than anything else. But there are also serious legal issues that Smith and his team seem to have been willing to ignore in terms of the statute’s applicability to the facts alleged.

In United States v. Guest, 383 U.S. 745 (1966), the Supreme Court grappled with the constitutionality of this statute, facing an argument that it was unconstitutionally vague and overbroad. The Supreme Court ultimately held that the statute was constitutional, but only because of the heightened intent requirements that follow from it being a conspiracy statute. In the Supreme Court’s words, “[a] specific intent to interfere with the federal right [at issue] must be proved” on the part of the alleged conspirators. Only because of that specific intent requirement was the prosecution in that case allowable, and was the statute itself deemed to pass constitutional muster.

In Anderson v. United States, 417 U.S. 211 (1974), the Supreme Court addressed the applicability of § 241 to a scheme to cast fake votes for federal, state, and local candidates in West Virginia. The Court cautioned that “[i]t is established that since the gravamen of the offense under § 241 is conspiracy, the prosecution must show that the offender acted with a specific intent to interfere with the federal rights in question.” Furthermore, the Court stated that “special care” was warranted in assessing this intent, because “charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning . . . a dragnet to draw in all substantive crimes.”

To prove his case, it’s not enough for Jack Smith to prove that Trump and his allege co-conspirators sought to overturn certified election results—he needs to prove that they acted with specific intent to deprive people of the rights to have their votes counted. This cannot be established by inference, under binding Supreme Court precedent. Smith needs evidence that Trump’s intent was specifically to deprive people of their right to have their votes counted.

On the face of the indictment and public record, it doesn’t appear that he has anything close to meeting this high bar.

(4) Issues with § 371

Section 371 is a statute that criminalizes defrauding the federal government or interfering in lawful functions of government. Its origins are in the tax fraud context, and it was originally cabined closely to property frauds against the federal government. Even after the statute was expanded, though, the Supreme Court has urged caution throughout the statute’s history that a conspiracy charge relating to the obstruction of governmental functions must be premised on the use of “deceit, craft or trickery, or at least by means that are dishonest.” Hammerschmidt v. United States, 265 U.S. 182 (1924). “Open defiance” of the law, for example, cannot give rise to a § 371 charge.

Courts have consistently held that obtaining a conviction under this statute requires both the existence of an agreement to achieve an unlawful objective, as well as deliberate, knowing, and specific intent to participate in that agreement.

Jack Smith’s theory is that Trump and his alleged co-conspirators conspired to “defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government.” But in light of the requirements for proving fraud conspiracy under § 371, Smith needs to show that Trump and his team knew that their theories were groundless when they promoted them to state legislators and other decision makers in the electoral count process, and encouraged those officials to take various official actions. And that Trump and his team agreed that this was the plan—promoting theories they knew were groundless, based on facts that they knew were false, to these legislators and officials.

The fact that Trump received advice to the contrary just doesn’t cut it, from a legal perspective, when it comes to proving a fraud conspiracy under § 371. This charge appears to be dead on arrival from a legal perspective.

(5) Misapplication of § 1512

Section 1512 was originally enacted as part of the Sarbanes Oxley Act in 2002, intended to deal with the fallout from the Enron collapse and investigations. Subsection (c), under which Trump has been charged, deals primarily with destroying evidence in advance of judicial proceedings or legislative inquiries, but it also contains a catchall provision that criminalizes corruptly “obstructing” an official proceeding.

The Biden DOJ has used this catchall provision, controversially, to prosecute January 6 defendants, and two of the counts in this new indictment track this theory—that Trump’s activities and statements constituted an obstruction of an official proceeding, namely the electoral count process.

This is an issue that is expected to come before the Supreme Court sooner rather than later. In a sharply divided panel opinion this April, the D.C. Circuit allowed § 1512 charges to proceed against three January 6 defendants. But it did so only on the basis that, in the words of Judge Justin Walker’s decisive concurrence, the act’s requirement of a “corrupt” mental state on the part of the defendants sharply delimited its scope. In Walker’s view, to convict under this statute, a Defendant must have acted with the specific intent “to procure an unlawful benefit either for himself or for some other person.” (Judge Katsas dissented and would have dismissed the charges entirely).

Under this reading of the statute, it is not enough that Trump (and in the case of the conspiracy charge his alleged co-conspirators) called for protests. It is not enough that Trump tried to prevent the certification of the election or the counting of electoral votes. Trump could have burned down the Capitol personally and that wouldn’t necessarily meet this high bar. He must be proven beyond a reasonable doubt to have done what he did to procure a benefit for himself that he knew to be unlawful. As with the other statutes discussed above, this is a very high bar to meet, and the facts as presented simply do not support this charge.

(6) Timing

As he did with his original indictment in the documents, Jack Smith accompanied his announcement of charges yesterday with a cynical call for a “speedy trial.” More than anything else, Smith’s insistence that these cases that he is bringing should be tried at the height of a presidential election adds fuel to the fire of President Trump’s expressed view that the Special Counsel is waging a political campaign against him, not a valid legal investigation.

To put it simply, there is no reason why this case needs to be litigated now, as opposed to two years ago, or as opposed to after the presidential election in 2024. In the documents case, Smith followed his speedy trial call with a voluminous discovery production consisting of close to a million pages of documentary evidence, nine months of video recordings, and terrabytes of data to be analyzed by Trump’s defense team. He then proceeded to file a superseding indictment adding new charges and a new defendant. That case was either ready for trial at the time it was brought, or it wasn’t, but Smith can’t have it both ways—his public statements and court filings amount to a gaslighting of the federal court and indeed of the American people.

In this case, the timing concerns are even more severe. The facts at issue date back to 2020 and the first few days of 2021. President Trump has already been impeached and acquitted for the same offense conduct he now faces these criminal charges for. Trump is now running to be president again (and winning in many polls). Inserting this case into the presidential election season has all the appearances of an attempt by Smith to substitute the judgment of his office, a single judge, and 12 D.C. jurors for the millions of Americans who would otherwise have had the opportunity to weigh these facts, alongside all the other political considerations that go into a presidential election. These millions of Americans will likely be faced with a choice to vote for Smith’s boss, Joe Biden, or his likely opponent, Donald Trump.

Prosecuting a political opponent during a presidential election in this manner smacks of banana republic politics.

Last edited
12:34 PM · Aug 2, 2023

https://twitter.com/willscharf/status/1686822846935207937

From Wills X home page.....

Will Scharf
@willscharf

Candidate for Missouri Attorney General. Worked on two SCOTUS confirmations. Fmr federal prosecutor. Fmr MOGOV Policy Director. Ignore likes and RTs.

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Good morning, lysie!

One of my all-time favs!

Thank you!

By the way, what did you make for everyone else?

Thanks. That first image is beautiful! So relaxing.

Good morning, LG!

Great post, and worth the read.

You have already done a whole day’s worth of work this morning, and the sun is barely rising where you are!

Pray for President Trump today, especially, due to the indictment.

All this injustice heaped upon an innocent person is a lot to bear for anyone, and Trump is 77 years old.

Thank God we have him.

Donald J. Trump

@realDonaldTrump

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8h

The Radical Left wants to Criminalize Free Speech!

Donald J. Trump

@realDonaldTrump

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9h

The latest Fake “case” brought by Crooked Joe Biden & Deranged Jack Smith will hopefully be moved to an impartial Venue, such as the politically unbiased nearby State of West Virginia! IMPOSSIBLE to get a fair trial in Washington, D.C., which is over 95% anti-Trump, & for which I have called for a Federal TAKEOVER in order to bring our Capital back to Greatness. It is now a high crime embarrassment to our Nation and, indeed, the World. This Indictment is all about Election Interference!!!

Good morning, exit!

Will spells it all out so that even I can understand these indictments.

If the Judge and the Jury were fair and impartial these cases would be laughed out of court, probably wouldn’t make it to court in the 1st place.

**Reminder** Trump will be arraigned at 4pm EDT and RSBN will start coverage at 1pm.

What kind of dogs are they? Lots of energy, that keeps you busy!

Real America’s Voice
@realamericasvoice
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5m
“This is a time, in the midst of this crisis — and that’s truly what it is — we have to have a Republican Party that does the right thing.”

@loudobbs tells @AmandaHead that, yes, House Republicans should bring an impeachment inquiry against Joe Biden. Dobbs also wants the RNC, the states’ attorneys general and all GOP presidential candidates to come together and file a suit against Biden and the DOJ.

https://truthsocial.com/@realamericasvoice/posts/110825610369762006

2:07 video

From the mystic Pacific to the turbulent waters of the Atlantic. From the Alaskan icebergs to the southern hot deserts. All of us stand behind one simple phrase, yet so complicated and confusing for those who have no faith.

IN GOD WE TRUST with TRUMP WE STAND

Share if you are a dedicated patriot🙏🇺🇸

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