Harvard law professor Alan Dershowitz said that Special Counsel Jack Smith could himself be indicted if the indictment of former President Donald Trump is thrown out.
Smith secured a four-count indictment of Trump relating to his efforts to contest the results of the 2020 election after he previously secured a 37-count indictment against Trump in June based on an investigation into allegations surrounding classified documents, which was supplemented with a superseding indictment issued Thursday that included charges against Carlos De Oliveira, a maintenance worker at Mar-a-Lago, the Florida estate owned by former President Trump. Trump faces arraignment on the charges in the Jan. 6 indictment on Aug. 3.
“You know the worst thing about this indictment, under the terms of this indictment, Jack Smith can be indicted. Let me explain to you why,” Dershowitz said. “The statute says the following, two or more persons conspire to injure and deny somebody the free exercise or enjoyment of any right or privilege secured him by the constitution. What if a court ultimately rules that Donald Trump had a right under the First Amendment to make his Jan. 6 speech and to do what he did? Then Jack Smith will have conspired to deny him of that right. That’s how serious this is.”
“Jack Smith … deliberately, willfully and maliciously leaves out the words that President Trump spoke on Jan. 6 in his terrible speech. which I disagree with, but what he said was, ‘I want you to assemble peacefully and patriotically,’” Dershowitz added. “Jack [Smith] leaves that out. That is a lie, a lie, an omission lie and if you’re going to indict somebody for telling lies, don’t tell lies in the indictment. If you’re going to indict somebody for denying people their constitutional rights, don’t deny them their constitutional rights by indicting them for free speech. That’s how hypocritical this is.”
Dershowitz earlier said that Smith’s indictment targeted Trump’s Sixth Amendment right to counsel, by naming attorneys who represented Trump as unindicted co-conspirators.
“The Supreme Court has said in an opinion by Chief Justice [William] Rehnquist … under the First Amendment there is no such thing as a false opinion or a false idea. The response to a false idea is the marketplace of ideas or Election Day,” Dershowitz said. “So you’re absolutely right, this is a very, very dangerous indictment, dangerous to the First Amendment and also dangerous to the Sixth Amendment because it directly goes after Trump’s lawyers, names them as unindicted coconspirators without giving their names, but basically says they’re criminals for giving him advice on how to challenge the election.”