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Trump DC Indictment – Where is the crime?

Trump DC Indictment – Where is the crime?

My interview about the Trump DC Indictment: “let’s go on the assumption they think they can prove these things, that the allegations were made in good faith. The question is, is there a crime here? That’s what I think a lot of people are questioning.”

I’ve been traveling since Monday night, so I haven’t had much time to comment here on the DC Trump indictment.

I was able to do an interview with Melina Wisecup on NTD yesterday from my hotel room with my initial impressions. As more comes out, my views may change, but for now, most of what is alleged appears to target constitutionally protected speech.

The indictment may make out a persuasive case that Trump lied in the post-election period about election fraud, and disregarded the warnings of his most trusted and most loyal confidants that what he was saying was not true, but that doesn’t equate to a crime. The core of the alleged crime is disruption of the electoral count, but that took place because of the riot, and Trump has not been indicted (yet) for inciting the riot. What the indictment purports to prove may be a reason not to vote for Trump, but it’s far from clear it’s a reason to criminally charge him.

Transcript (auto-generated, may contain transcription errors).

Melina Wisecup (00:00):

And now let’s assess the legal ramifications of this latest indictment. We have Professor William Jacobson from Cornell Law School to discuss what the four charges against Trump actually mean and what kind of evidence is needed to prove them. Alright, William, thank you so much for joining me today to discuss this very important topic. I want to ask you about the specific charges. We know there’s four felony charges, three of those four are conspiracy charges. So from your perspective, what kind of evidence is needed to prove those conspiracy charges? And then are those more difficult charges to prove?

WAJ (00:35):

What you’re going to need is you’re going to need evidence that they were intending to commit a crime. There is no crime of just conspiring. You can conspire to do something lawful. That’s not a crime. It’s what were they conspiring to do. And once you prove a conspiracy and once you prove that someone was a participant in it, then it opens up the evidence fairly widely as to what comes into evidence. Anything that was done to further the conspiracy could be used against you.

Wisecup (01:04):

So what kind of evidence do you think that prosecutors will be looking at in Trump’s case?

WAJ (01:08):

Based on the indictment, they claim to have text messages, phone conversations, emails, testimony presumably from people who were involved, testimony that’s been taken. So they claim to have that. And of course an indictment are just allegations. They’ve actually have to prove them. But that’s what they say they have. They say they have all of this electronic and testimonial evidence to use against Trump.

Wisecup (01:34):

Do you think, William, that this will be pretty bad for Trump? Do you think that they actually have that hard evidence and will be able to prove those conspiracy charges?

WAJ (01:44):

Well, you know, the federal government has been known not to be completely truthful in the past, but let’s go on the assumption they think they can prove these things, that the allegations were made in good faith. The question is, is there a crime here? That’s what I think a lot of people are questioning. A lot of what they’re complaining about, a lot of the indictment is constitutionally protected speech. For better or worse, politicians are allowed to lie. That’s not a crime. Maybe a reason not to vote for them, but it’s not a crime. So it’s not really clear what is the actual crime that was committed here. And that’s something a judge is going have to rule on.

Wisecup (02:23):

Oh, that’s an interesting perspective. I want to ask you also about the obstruction of Congress charge. Do you think that they have enough evidence to prove this, considering the fact that Trump wasn’t even going inside the Capitol building?

WAJ (02:36):

Well, I mean that’s the whole point. What was the disruption of Congress that took place? It was the riot. It wasn’t Trump talking to people in Georgia or making phone calls or going on TV. They don’t charge him with inciting the riot. And that’s a very key point.

A lot of people, and frankly my initial thought was when I saw the media reports, is he was being indicted for the January 6th riot, but he’s not, that’s actually not what the indictment says. The indictment says he was trying to obstruct things by convincing people to create fake certificates that there were electors and things like that. But that is, that’s I think a major defect in the indictment. I’m not saying the indictment’s going get thrown out, but my guess is that the prosecutors have the evidence, they claim they have, but it’s going be up to a judge and eventually a jury as to whether that’s actually a crime.

Wisecup (03:32):

What’s your message to those who genuinely believe? Because there are a lot of folks in America that genuinely believe that Trump did something wrong and he did incite this riot and he should be charged for this issue. What do you say to those people?

WAJ (03:46):

Well, I would say distinguish between political wrongs and criminal wrongs. It would be perfectly within someone’s right to say, I don’t like the fact that he was lying about these things. That’s a perfectly good reason not to vote for somebody. But that doesn’t mean it’s a crime. And I think the criminalization of politics is a very negative trend in our society.

Wisecup (04:11):

I think that’s a very insightful point, William, separate politics from fact. Last question for you. I want to ask about your perspective on the current ongoing Georgia case, where Trump is potentially going to have a fourth indictment. What do you think about that case that’s ongoing?

WAJ (04:26):

Georgia seems like it’s going to be something similar to DC. It’s going to be a conspiracy. It’s going to be a lot of bits and pieces. And the question’s goingto  be, what is the conspiracy? What was the illegal thing he was trying to do? And that is not abundantly clear in Georgia.

There is that tape when he talks about finding new votes and finding more votes. But I think a reasonable interpretation of that is what he was, I’ve listened to the audio,  what he was saying is, make sure all of the votes have been counted. Make sure there are none out there because we all know it’s not uncommon for days and sometimes weeks after an election for new votes to be found, doesn’t mean they’re illegal votes. So the question in Georgia is going to be, was he trying to get people to do something illegal or was he simply trying to persuade them that they hadn’t done their job well enough and they needed to do a better job of counting the votes? Telling a state official you need to do your job better is not illegal.

Wisecup (05:25):

Wow. Very clear and insightful perspective. We really appreciate your time, William. Great. Thanks so much.


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There never was a crime.. ever..

Maybe legalinsurrection could step in and offer their legal expertise to help President Trump

    JustSayN2O in reply to gonzotx. | August 3, 2023 at 12:14 pm

    Attorneys practicing in democrat strongholds like NY and RI must be wondering if advising or representing clients who are politically unpopular in these states would then lead to adverse actions by the state bar.

      mailman in reply to JustSayN2O. | August 4, 2023 at 4:03 am

      There is no wondering. We have already seen moves made to disbar anyone who represents the wrong kind of clients in Democrat shot holes.

Nick Rekieta also pointed out the issue of presidential immunity. If Trump was trying to ensure that the voting was accurate and that the people’s will that prevailed, then it all falls within the rightful activities of his office as president. (And, yes, a president can disagree with his advisors, with every single one of them. He’s the elected president; they are not.)

However, none of that matters. The only thing that matters is venue. A DC court, where Trump got about 5% of the vote against Biden, will be ready to convict before voir dire even starts.

First, they don’t care that the charges lack merit. They have an indictment in DC with an Obama judge. The process will be lengthy and costly. Adults will finally dismiss it at the appellate level but it doesn’t matter. The burden imposed by the process is what matters to these scunge. Second, Trump was the President, as well as a candidate, he had no obligation to defer to his underlinings” view on the election or anything else. They had a duty to follow his orders, not vice versa. He had the final decision as President. Smith pretends he was never president and I’m afraid even critics of the indictment lose sight of this.

The indictment says he was trying to obstruct things by convincing people to create fake certificates that there were electors and things like that

But aren’t these certificates supposed to be some sort of official, that carries legal weight? I’m quite sure it’s a crime to knowingly falsify things like tax returns, surely there’s some penalty for falsifying a certified slate of electors?

And if it’s a crime to falsify such a document, is a crime to conspire with another to do the same.

    alaskabob in reply to Flatworm. | August 3, 2023 at 1:37 pm

    Where is one of those Poseidon thingies when you need it? I mean… if Trump is really colluding with the Ruskies… wouldn’t flushing out all opposition a good thing?

    alaskabob in reply to Flatworm. | August 3, 2023 at 1:38 pm

    Where the “fake” certificates submitted to the Congress?

    Concise in reply to Flatworm. | August 3, 2023 at 1:53 pm

    No, it is not a crime to submit an alternate slate of electors. It is a matter for Congress to decide.

      2smartforlibs in reply to Concise. | August 3, 2023 at 2:54 pm

      Totally agree. At one time I had a list of the time the left has done it and wanted to copy it here for you but I can’t find it.

      Flatworm in reply to Concise. | August 3, 2023 at 3:19 pm

      Admittedly, I’m not up on the nitty gritty of the forms & documents used in the recognition of election results. But is it really nothing more formal than shooting someone an e-mail, letting them know who’s casting the votes for Nebraska? No signature under pain of perjury, nothing?

      mailman in reply to Concise. | August 4, 2023 at 4:05 am

      Can’t wait for these so called crimes to be pinned against Clinton 😂😂 Probably best not to hold one’s breath 😂

2smartforlibs | August 3, 2023 at 2:53 pm

It would appear the crime is Jack Smith withholding exculpatory evidence.

Thus far has not been indicted for the commission of an actual crime,…and GA will be no different.

Doesn’t Professor Jacobson understand that all free speech is created equal, but that some free speech is more equal than other free speech?

    mailman in reply to ChrisPeters. | August 4, 2023 at 4:07 am

    LI is still treating these as rational when they should be screaming from the rooftops about the irrationality of politically motivated hit jobs from Bidens DoJ.

Fat_Freddys_Cat | August 3, 2023 at 4:18 pm

Heh. They’re going to get revenge on Trump for interfering with Blessed Queen Hillary’s coronation and they’ll go to whatever lengths are necessary.

    The motivation for revenge against Trump started on Election Night 2016, as Democrats across the country were horrified to discover that they didn’t commit enough voter fraud for Hillary to win. No doubt some vowed right then and there that such a mistake would not happen in 2020. Hence, 81 million votes for a doddering old man with declining cognitive skills.

The crime is breathing while being Trump. That’ll do for them.

Lots of paid protesters

So I have a question that comes from the Professor’s partial statement “you’re going to need evidence that they were intending to commit a crime.”

If I plan a bankrobbery with some buddies, I put the plans on a flash drive but leave it accidently at a coffee shop and someone finds it. They open the .ppt and then turns it over to the police I can be charged with a crime?

Seems like I am being charged with “future crime”.

    henrybowman in reply to CanonF1. | August 3, 2023 at 5:29 pm

    Yes you can, and what you will be charged with is (past) conspiracy to commit a crime, not the (future) uncommitted crime.

      starride in reply to henrybowman. | August 3, 2023 at 5:37 pm

      slippery slope, every author of murder or any violent book could be charged for the same.

      I thought you had to have the ability to commit the action and initiate some action of the conspiracy to be able to be charged and convicted.

      CanonF1 in reply to henrybowman. | August 3, 2023 at 5:40 pm

      Even if 20 minutes after I realize I lost the flash drive I email my buddies and call it off?

        gmac124 in reply to CanonF1. | August 3, 2023 at 7:10 pm

        The act of emailing them to call it off would be an admission of guilt. If no action was ever undertaken I don’t think they could get a conviction. You could always say it was research to write a book or something similar.

          CanonF1 in reply to gmac124. | August 4, 2023 at 10:59 am

          Well we know the punishment is the process, but since I am a white guy living in Hennipin county MN I wouldn’t feel good about avoiding a conviction.

    mailman in reply to CanonF1. | August 4, 2023 at 4:09 am

    Kind of like Democrats conspiring to remove a sitting President through the creation of the muh Russia hoax??

    Or are we talking about Trump exercising his free speech rights by questioning the validity of the election given all the Democrat led shinanigins that went on through the entire campaign and voting day…I mean months.

“The case should be dismissed for failure to state an offense”. From George Parry’s excellent article in The American Spectator:

    The Laird of Hilltucky in reply to sfharding. | August 5, 2023 at 10:27 am

    What crime did Trump conspire to commit? Well, of course, the crime that they conspired in. See how that works? Dem prosecutors, Dem judge, Dem jurors. It’s obvious, isn’t it?

An Obama ‘judge’ and a DC jury will provide the appropriate show trial. As for appellate reversal, isn’t the DC circuit mostly Democrats?

PuttingOnItsShoes | August 3, 2023 at 7:11 pm

Professor Jacobson, as much as I do like your blog and your commenters. I am very troubled by this recent interview. In this interview you talk about the upcoming trial and the particulars of the case as one would if there were some reasonable legitimacy to the overall proceeding.

There is no point in that it and only gives it a credibility that it doesn’t deserve. The only thing people should be saying about it is that it is completely anti-constitutional and anti-rule of Law and the complete turnover of the reins of power to the Democratic party through the criminalization of political disagreement.

The only thing that a person who really cares about the future of the country should be saying is that there is no form or fashion whatsoever that Trump should be undergoing a trial, be charged by a bunch of partisans, be tried in a district that is full of political hacks and political hackery in a politically monolithic jury pool.

When you talk about what he can and should and might do at a trial and that he’ll be offered the opportunity during a trial to say this or that, all you’re doing is giving legitimacy to the idea that a trial should occur whatsoever. We all need to be resolute: conducting this trial is a violation of US Code 242 Deprivation of Rights Under Color of Law. That is what Trump has been subjected to since before his first election and continuously in numerous ways throughout. The people that should be on trial are the people in the doj and the FBI who pursued the Russian hoax without probable cause and got false fisa warrants, the people in New York who ran on a platform that they would indict Trump without any evidence of any crime, the people in the Justice Department who turned a presidential records dispute as a civil matter into a felony cause, and finally, Jack Smith and This Crew which is really just an extension of Andrew Weissman telling him what and how to do it. I’m troubled, deeply troubled, that you’ll get on television and talk about the potential trial as if the right level of discussion is what should be pursued a trial.

    I’ve said this before, LI is treating this like it’s a rational normal thing instead of the utter political bullshit it is! They should be screeching about it from the roof tops but all we see is articles like this which, as you say, gives these Democrat moves an are of credibility.

    There is no chance in hell Trump will ever get a fair hearing.

Subotai Bahadur | August 3, 2023 at 8:05 pm

After the fall of Kerensky in the former USSR, the functional basis for something being a crime was to not submit to those in power, or to submit to the wrong thing at the wrong time. To speak for human rights or to support freedom of expression was to question the very basis of Marxism-Leninism and the legitimacy of the party’s rule. Demanding an honest election, with only real qualified citizen voters only voting once each, properly, accurately, and openly counted and reported under the law and Constitution is the modern American equivalent.

I would suggest that the Gentle Readers familiarize themselves with certain terms; “Article 58”, zek, and “Gulag”. You can be sure that the American Left has.

Subotai Bahadur

The riot didn’t disrupt the Senate either – the Senate’s proceedings were halted and the floor cleared as a result of the pipe-bomber (that FBI still hasn’t identified). Pipe bombs found a block or so away at both the R and D HQ’s in DC.

This was well before the protest got out of hand.

    jpwcpa in reply to Aarradin. | August 4, 2023 at 3:34 pm

    Those pipe bombs contained as much explosive as a photo of a pipe bomb, as I recall. OJ Simpson has made more progress to find the real killer than the FBI has made to find the so-called bomber.

So Trump disagreed with some of his advisors and forged his own path culminating in his indictment. What about the many instances of possible election fraud supported by signed affidavits that were never acted upon? Many swore affidavits that fraud had occurred yet not one was prosecuted for perjury. Why? Had the government prosecuted just a fraction of those falsely swearing fraud the clean election dogma might have had better legs. The fact no one was prosecuted tells me the affidavits were in fact true. Trump’s defense now armed with subpoena power may put the entire 2020 election on trial thus causing the prosecution to disprove his words.

The crime is effective dissent, and we all know it

Dejectedhead | August 7, 2023 at 8:33 am

They don’t need evidence to convict in D.C.

2smartforlibs | August 7, 2023 at 3:43 pm

I had mentioned before Stalin would be so proud. Upset a Kool-Aid drinker. I guess he never heard of Lavertiy Beria.