‘Potentially A Showstopper’: Former Federal Prosecutor Says Trump Indictment Is ‘Very Tenuous’


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A former federal prosecutor said Wednesday that the case against former President Donald Trump over the 2020 election was “very tenuous.”

Special Counsel Jack 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. Trump will be arraigned on the charges Aug. 3 at a federal courthouse in Washington, D.C. (RELATED: Lawyer Says ‘Political Speech’ Is Being ‘Criminally Prosecuted’ At ‘Highest Levels’ In Wake Of Trump Indictment)

“I think a lot of people are probably surprised that there was not a charge directly related to the insurrection and to the inciting of violence on that day,” Katie Cherkasky told “CNN News Central” host Jim Sciutto. “But I think big picture here, we would really be remiss to not talk about the jurisdiction of this case from a criminal prosecutorial standpoint.”


“So there’s been a lot of discussion about the facts, and I think that Donald Trump obviously has some defenses that he’s going to raise, First Amendment-wise, attorney-client privilege-wise, but ultimately this case is unprecedented in terms of the constitutionality of it, and I think that is something that is really going to be potentially a showstopper,” Cherkasky continued. “So while his conduct may be very well condemnable, the idea of a criminal prosecution here I think is very tenuous.”

Legal experts noted that much of the conduct Smith claimed was criminal in the indictment appeared to be protected by the First Amendment. Harvard University law professor Alan Dershowitz said that the indictment not only attacked the First Amendment, but also Trump’s Sixth Amendment right to counsel.

“There 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, basically says they’re criminals for giving him advice how to challenge the election,” Dershowitz told Fox Business host Larry Kudlow Wednesday.

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