Oh what a tangled case we make when we charge intent to fake
Jack Smith is going to lose the Nov. 14-Jan. 7/Nov. 14-Jan. 20 non-violent Washington, D.C. case. He can't prove what he has charged beyond and to the exclusion of every reasonable doubt and he didn't charge what he can prove: incitement to insurrection, seditious conspiracy.
Legal experts said proving that Trump and his co-conspirators were lying when they said the electors were meeting just in case will be a central challenge of winning a conviction.
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What the indictment does not say is whether all the doubts it documented about the legality of the elector plan were conveyed to Trump or if Trump had ever acknowledged that possibility. It alleges that his false claims of election fraud were “integral to his criminal plans” to obstruct the certification.
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When is a scheme a crime?
The indictment alleges that Trump and his co-conspirators “falsely” told Republican electors they were convening purely to protect the campaign’s legal recourse, but that their real purpose was to submit “fraudulent” elector slates for Congress to consider in lieu of Biden elector slates. …
But the details also show the challenge prosecutors face in trying to prove that the elector scheme amounted to a crime, and they raise the question of who else besides Trump and the unnamed co-conspirators cited in the indictment might be implicated down the road. Edward Foley, a law professor at Ohio State University and the director of its election law program, said the caveat in the Pennsylvania elector slate could make it difficult to criminalize their activity.
“The conditionality, I think, has got to protect you from criminality because you are basically putting everybody on notice that you are not claiming to be an elector unless this condition becomes favorable to you, which it clearly did not,” said Foley, who has studied disputed national elections and the role of electors.
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John Malcolm, a former federal prosecutor based in Atlanta who is now a constitutional scholar at the conservative Heritage Foundation, said the indictment appears to be attempting to criminalize the efforts of the Trump lawyers to advocate on his behalf. Lawyers make arguments all the time that prove to be wrong in court, but that does not make them criminal, he said.
And doing so could have a chilling effect on their jobs. “Putting forward plausible but ultimately unavailing legal arguments, that is what lawyers do and that is what they should do,” Malcolm said. “And they should do it on behalf of their clients even if their clients are not very popular.”
Election litigation was still pending in all but two of the states, Nevada and Michigan, which is sure to be a core defense not only in the federal case but also in an investigation in Georgia’s Fulton County…
