Below is my column in the Messenger on the possible second federal indictment of former President Donald Trump. The basis for an indictment remains unclear but the advantage in trying a case in Washington, D.C. is obvious.
Here is the column:
Mr. Smith Goes to Washington is a favorite classic movie for millions of Americans. Today’s legal-political sequel, however, may prove to be a bit more controversial.
Former President Donald Trump has revealed that he received a “target letter” from Justice Department special counsel Jack Smith as part of Smith’s investigation into the Jan. 6, 2021, riot at the Capitol.
Many people were surprised by the news, since Smith already is pursuing criminal charges in Florida on the mishandling of classified documents and the likely Jan. 6 allegations are far more tenuous legally. However, the second indictment may have one irresistible element: It could be tried in Washington.
There are obvious reasons why Mr. Smith would want to go to Washington in this instance. Trump would face what is, for him, arguably the worst jury pool in the country. Trump lost the 2020 presidential vote in the District of Columbia, receiving a mere 5.4% of the vote. That means finding a Trump supporter in the district’s jury pool is only slightly more likely than finding a snow leopard.
Such an indictment could come at a high legal and political cost. This would be the third criminal indictment of Trump and there may still be a fourth coming in Georgia. Past indictments have given Trump boosts in polling, and this indictment could well seal the view of many voters that Democrats are weaponizing the legal system.
Smith has a reputation in conservative circles for stretching the criminal code in high-profile cases, including the prosecution of then-Virginia Gov. Robert McDonnell (R), a conviction that was later thrown out in an 8-0 decision by the U.S. Supreme Court, which rebuked Smith for what it termed the “Government’s boundless interpretation.”
That would certainly be the likely criticism again if Smith relies on Trump’s Jan. 6 speech for criminal charges. That speech is entirely protected under the First Amendment and governing case law, including Brandenburg v. Ohio. Any count based on Trump’s speech would likely be overturned on appeal.
Smith also could be pursuing claims based on the Trump team’s effort to challenge the 2020 election’s certification, including the possible submission of an alternative slate of electors. That foundation also would be controversial, however.
In the past, congressional Democrats used the very same law to challenge presidential election certifications with little or no evidence. Indeed, not long after the election, I wrote about that possibility in what I called the “Death Star strategy” using the same grounds. The use of the federal law for that purpose was not and is not a crime.
Indeed, the House Jan. 6 (J6) Committee’s chairman, Bennie Thompson (D-Miss.), voted to challenge the certification of the 2004 election results and then-President George W. Bush’s reelection. His fellow J6 Committee member, Rep. Jamie Raskin (D-Md.), sought to challenge Trump’s certification in 2016. Then-House Speaker Nancy Pelosi (D-Calif.) and Senate Judiciary Committee Chairman Richard Durbin (D-Ill.) both praised the challenge organized by then-Sen. Barbara Boxer (D-Calif.) in 2004.
The question is whether Smith has evidence that goes beyond such use of the same law by Trump and his supporters. The J6 Committee spent a huge amount of time and money to try to find a direct link of Trump to a violent conspiracy or other crimes. It failed to produce such direct evidence, despite its revelations of embarrassing and disturbing testimony on Trump’s reaction to the Capital riot.
Those hearings showed that the White House’s lawyers rejected the theories put forward by figures like Trump associate John Eastman. However, relying on bad advice or bad law is not a crime. President Joe Biden, like his predecessors, has been accused of knowing disregard of statutory and constitutional law, including repeated losses before the Supreme Court. We have never criminalized such interpretations.
While many of us rejected the Eastman arguments, Trump had a split among the lawyers advising him on that day. He listened to the wrong side — but proving that he clearly knew the arguments were invalid would be a difficult task for Smith.
Again, Smith may have acquired evidence that eluded the J6 Committee. We will have to see.
There also is the possibility that, despite the usual pattern of target letters leading to indictments, Smith could be doing his due diligence in seeking Trump’s appearance before a grand jury before closing out the case. Trump would be certifiably insane to take Smith up on such an offer. Yet the widespread expectation now is that Smith will indict Trump if there is any possible basis on which to do so in Washington.
A Washington trial would add pressure on Trump to seek a plea deal, but that seems unlikely to evolve. Not only could Trump be pardoned by a potential Republican president after 2024, he could grant himself a self-pardon if he won election to another presidential term.
We could learn some of these answers as early as next week, if there is an indictment. Smith gave Trump only four days to appear before the grand jury. After that, Smith must make a decision.
With a majority of voters already viewing earlier Trump indictments as politically motivated, Smith would need to make a case that is unassailable. That means it cannot be another McDonnell case built on some new “boundless interpretation” by Smith of federal law. If Mr. Smith goes to Washington this time, he needs to bring indisputable evidence and law to support new charges against Mr. Trump.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.