- Legal experts pointed to previous rulings and First Amendment issues with Special Counsel Jack Smith’s indictment against former President Donald Trump to argue charges against him would not hold up on review by the Supreme Court.
- “I think he may lose in the Court of Appeals for the D.C. Circuit, but he will probably win in the United States Supreme Court, if they grant review,” Harvard Law professor emeritus Alan Dershowitz said on Fox News Wednesday.
- U.S. District Court Judge for the District of Columbia Tanya Chutkan is overseeing the case, and Cornell Law School professor William A. Jacobson told the Daily Caller News Foundation he does not expect Supreme Court involvement “anytime soon.”
The charges Special Counsel Jack Smith brought against former President Donald Trump would likely not hold up before the Supreme Court, legal experts say.
Trump pleaded not guilty in Washington, D.C. Thursday to four charges he was indicted on relating to the 2020 election. Legal experts noted the charges brought by Smith would not hold up under Supreme Court review, pointing to the court’s prior rulings and First Amendment problems with the indictment.
“I think he may lose in the Court of Appeals for the D.C. Circuit, but he will probably win in the United States Supreme Court, if they grant review,” Harvard Law professor emeritus Alan Dershowitz said on Fox News Wednesday. “And they should grant review. When you have the president of the United States’ people going after his opponent in a political election, it has to be beyond reproach. It has to be without any problem. It has to be the strongest case in history. This doesn’t meet this standard.”
A skewed jury may disregard the First Amendment, Dershowitz wrote in an op-ed for the Daily Caller News Foundation, but the Supreme Court would “prioritise the First Amendment and reverse any conviction that violates the Constitution.” (RELATED: Trump Indictment Cites Agency That Backed 2020 Election Censorship Efforts As ‘Best Positioned’ To Know The Facts)
WASHINGTON, DC – JULY 08: A man uses a riding lawn mower to cut the grass in front of the U.S. Supreme Court July 08, 2020 in Washington, DC. In a dual victory for religious groups, the court handed down decisions Wednesday in Little Sisters of the Poor v. Pennsylvania, ruling that employers with religious objections are allowed to decline to provide contraception coverage under the Affordable Care Act. Additionally, the court ruled that federal employment discrimination laws do not apply to teachers whose duties include instruction in religion at schools run by churches in In Our Lady of Guadalupe School v. Morrissey-Berru. (Photo by Chip Somodevilla/Getty Images)
“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,” former federal prosecutor and Missouri Attorney General candidate Will Scharf tweeted Wednesday. “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.”
Others pointed out that prior Supreme Court rulings stand in the way of special counsel Jack Smith’s charges.
The fraud alleged in the indictment is “not actionable fraud as the Supreme Court has described fraud — as recently as May,” Former New York federal prosecutor Andy McCarthy said on Fox News Wednesday.
Trump was charged with one count of conspiracy to defraud the United States, one count of conspiracy to obstruct an official proceeding, one count of conspiracy against rights and one count of obstruction of and attempt to obstruct an official proceeding, according to the indictment.
“The Supreme Court made very clear that fraud in federal law is a scheme to swindle someone out of money or physical property,” McCarthy told the outlet.
Jonathan Turley also noted in a USA Today op-ed Wednesday that a “line of Supreme Court cases” undercut the charges.
“In the 2012 United States v. Alvarez decision, the Supreme Court held 6-3 that it is unconstitutional to criminalize lies in a case involving a politician who lied about military decorations,” Turley wrote.
The court determined in the 2012 ruling that criminalizing this speech “would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.”
A conviction Smith secured against former Republican Virginia Gov. Bob McDonnell on corruption charges was also thrown out 8-0 by the Supreme Court in 2016.
U.S. District Court Judge for the District of Columbia Tanya Chutkan, who previously worked at a law firm that once employed Hunter Biden, is overseeing Trump’s case.
Cornell Law School professor William A. Jacobson told the DCNF he does not expect Supreme Court involvement “anytime soon.”
“It would be extraordinary for the Supreme Court to get involved in the details and procedures of an ongoing criminal case,” he said. “Normally the Supreme Court is involved, if at all, only after a conviction and normal appeal process.”
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