However much former President Trump’s political enemies want to block his return to the White House, they should nonetheless hope he’s acquitted of the charges in the latest indictment brought by special counsel Jack Smith. To convict him would create a precedent by which in the future both Democratic and Republican officials could be convicted of all sorts of acts heretofore not considered crimes.
The indictment is as interesting for what it does not say as for what it does. Trump is not charged with either incitement to riot or conspiracy to invade and sack the Capitol. Smith evidently recognized that Trump’s remarks on January 6, charging election fraud, contained no explicit calls for violence and were therefore constitutionally protected under the First Amendment. Nor could Smith find a link between Trump and either the Proud Boys or the Oath Keepers who did, in fact, instigate the violence. In essence, rather, Smith charged Trump with using a fraudulent claim to impede a governmental function—the official counting of the electoral vote. In other words, it was okay for Trump to use his First Amendment free speech rights to assert a false claim (election fraud), but not okay to act upon it.
And the conviction of Trump on the legal theory advanced by the indictment could be used to convict future officials, Democratic and Republican alike, of acts not heretofore considered crimes. Examples from the recent past give some indication of what might be in store for future Presidents as well.
For example, Wall Street Journal columnist Kimberly Strassel noted that President Obama, to appoint officials whom the Senate might reject, claimed to be making “recess appointments.” Under the Constitution, if the Senate is not in session when the President makes an appointment, the appointee may serve until the Senate convenes to confirm or reject the appointment. But the President cannot simply declare the Senate in recess, make an appointment, and refuse to submit it for Senate confirmation, as President Obama did on several different occasions. The Supreme Court, with a 9-0 majority, declared Obama’s actions unconstitutional. Should Obama have been prosecuted for acting on a false interpretation of his constitutional powers. Should future presidents in similar circumstances be prosecuted?
Strassel also noted that in 2021 President Biden said, while discussing student loan forgiveness, “I don’t think I have the authority to do it by signing with a pen.” Then-House Speaker Nancy Pelosi agreed: “People think the President of the United States has the power for debt forgiveness. He does not.” So should Biden have been prosecuted for taking an action based on a theory—that the President could forgive student loans—that he knew to be false? Again, should future presidents be prosecuted for similar actions.
And civil liberties attorney and retired Harvard law professor Alan Dershowitz has noted that under Jack Smith’s legal theory Smith himself could be prosecuted. In discussing the Trump indictment Smith reviewed Trump’s January 6 speech, but he omitted the words that Trump used and which gained him immunity for prosecution for the speech itself. Smith failed to mention that Trump had explicitly told the crowd to demonstrate “peacefully and patriotically.” This, said Dershowitz, was a “lie by omission,” thereby opening Smith himself to charges of using a fraudulent summary of Trump’s actions on 1/6 as the basis of a government action. Should he be prosecuted? Should future prosecutors be prosecuted as well? Dershowitz said most emphatically not. Yet a false statement, whether made so by a sin of omission or a sin of commission, is still false. Where does one draw the line.
These possibilities may seem far-fetched. But not so far-fetched is probability that American politics will continue its descent into partisan bitterness, acrimony and conflict, and that each side will look for new ways and means by which to bedevil and destroy the opposition. This indictment, if it leads to the successful prosecution and conviction of former President Trump, will create a new way by which Democrats and Republicans alike can advance the politics of personal destruction and the criminalization of heretofore legal, if not always savory, political activities to advance or block policy objectives. Democrats and Republicans alike will constantly search for evidence of false statements that can be used to help prosecute their opponents. Finding false statements in the robust give and take of partisan politics will be easy. Recovery from the damage as each side races to criminalize and prosecute the opposition will be less so.
Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton from 1987 until 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present). He was Mayor Pro Tem of Stephenville from 2008 to 2014. He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.
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