Legal Experts: Trump Indictment Won’t Fulfill Democrats’ Ineligibility Hopes; Smith ‘Stretched Law’

Former President Donald Trump’s latest indictment on four counts relating to the aftermath of the 2020 election will not come close to fulfilling Democrats’ dreams of prohibiting the GOP front-runner from attaining high office again, said a law professor.

Jonathan Turley’s, George Washington University Law Professor, analysis was essentially seconded by another legal expert, Any McCarthy, a former New York federal prosecutor. He noted he had successfully prosecuted a “seditious conspiracy” case and said the Trump investigation gets nowhere close to that threshold.

David Spunt, a correspondent for Fox News, reported on the program “The Five” that former President Trump had been indicted on four counts: conspiracy to obstruct an official proceeding, conspiracy to defraud the United States, conspiracy against rights, and obstruction of an attempt to obstruct an official proceeding.

Turley said that special counsel Jack Smith might be “yielding to his weakness” with the indictment.

“[Smith] may be stretching the law a bit, so that’s why we’re going to be looking at things like witness tampering to see how much new evidence he has,” said Turley. “You’ll notice that not being discussed in all of this is a conspiracy for incitement [or] seditious conspiracy.”

Turley noted those two claims were crucial in Democrat Representative Adam Schiff of California’s second impeachment proceedings against Trump.

“Those were the claims that Democrats said were lead pipe cinches, where the evidence was absolutely clear,” said Turley. “They do not appear thus far to be in this indictment, but we’ll have to see.”

“Jack Smith has a reputation for stretching criminal statutes beyond the breaking point. He went after [former Virginia Republican Gov. Bob McDonnell] and secured a conviction there. He was unanimously overturned because he just stretched the law too far.”

Democrats and Trump critics have accused the former president for a long time of urging supporters to forcibly overturn the election by storming the Capitol. Trump has repeatedly emphasized that he urged supporters who marched to “peacefully” demonstrate on Capitol Hill.

Speaker of the House McCarthy reacts to indictment details

On an appearance on Fox’s “Special Report,” Turley was joined by Speaker Kevin McCarthy, who responded to details from the indictment that showed descriptions of phone calls between former President Trump and then-Vice President Mike Pence regarding the election. 

Trump has repeatedly claimed that Pence had the authority to send the elector slates back to the state legislatures under the 1887 Electoral Act.

McCarthy referenced the way some Trump supporters pressed him on the theory, which could be connected to the conspiracy count in the indictment; however, they suggested that no matter how “frivolous,” the machinations are likely to be protected speech.

“I think it’s even beyond that. I think there you get into this whole idea of criminalizing a frivolous legal theory,” said McCarthy, and named Trump-friendly attorney John Eastman, who forwarded the theory of the electoral slate. 

Reportedly, Eastman pressed for certain states to appoint “alternate” slates of electors that would help resolve disputed slates presented to Pence on January 6 as he served as president of the Senate during the time of the tally.

“Eastman’s theory may have been a bad one. I think it was a bad one, but it was something that he was allowed to rely on,” said McCarthy.

“And generally speaking, in this country, what we do with frivolous legal theories is we figure that the jury system will take care of it, or the political system will. We don’t criminalize them. And that’s what this indictment attempts to do.”

Speaker McCarthy also said connecting the former president to the incitement, as Smith reportedly attempts to do, would be “low-rent stuff that prosecutors are not supposed to do.”

McCarthy said, “If you’ve got evidence that Trump committed incitement, then charge him with incitement. But, of course, I can say as somebody who actually successfully prosecuted a seditious conspiracy case, they don’t have a prayer of a case like that…”

“There’s a section [in the indictment] that’s called ‘exploiting the violence of January 6’ — I forgot exactly how it’s articulated, but he talks about exploiting it because he can accuse him of actually aiding and abetting it or committing it in any actionable way,” the speaker continued.