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Jack Smith Could Be ‘Indicted’ By His Own Standards If Trump Defeats Him In Court

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OPINION: This article may contain commentary which reflects the author's opinion.


Special Counsel Jack Smith, who has been relentlessly going after former President Donald Trump, may be the one who finds himself indicted.

Harvard law professor Alan Dershowitz gave a blockbuster interview on Fox Business Network on Wednesday where he explained what could be in the special counsel’s future.

“You know the worst thing about this indictment, under the terms of this indictment, Jack Smith can be indicted. Let me explain to you why,” the famed professor said. “The statute says the following, two or more persons conspire to injure and deny somebody the free exercise or enjoyment of any right or privilege secured him by the constitution.

“What if a court ultimately rules that Donald Trump had a right under the First Amendment to make his Jan. 6 speech and to do what he did? Then Jack Smith will have conspired to deny him of that right. That’s how serious this is,” he said.

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“Jack Smith … deliberately, willfully and maliciously leaves out the words that President Trump spoke on Jan. 6 in his terrible speech, which I disagree with, but what he said was, ‘I want you to assemble peacefully and patriotically,’” he said.

“Jack [Smith] leaves that out. That is a lie, a lie, an omission lie, and if you’re going to indict somebody for telling lies, don’t tell lies in the indictment,” the attorney said. “If you’re going to indict somebody for denying people their constitutional rights, don’t deny them their constitutional rights by indicting them for free speech. That’s how hypocritical this is.”

“The Supreme Court has said in an opinion by Chief Justice [William] Rehnquist … under the First Amendment there is no such thing as a false opinion or a false idea. The response to a false idea is the marketplace of ideas or Election Day,” he said.

“So you’re absolutely right, this is a very, very dangerous indictment, dangerous to the First Amendment and also dangerous to the Sixth Amendment because it directly goes after Trump’s lawyers, names them as unindicted coconspirators without giving their names, but basically says they’re criminals for giving him advice on how to challenge the election,” he said.

And the charges that the former president faces could bring the ultimate penalty.

Joel Pollak of Breitbart News detailed how that charge of “conspiracy against rights” could bring capital punishment as the ultimate penalty.

“18 U.S.C § 241, “Conspiracy Against Rights,” includes a penalty of up to 10 years in federal prison. But it adds that if death results from the actions covered under this provision, the offender may be executed,” he said.

“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

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“If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—,” the statute reads.

“They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death,” it says.

Ashli Babbitt did die after being shot by a Capitol police officer during the incident at the Capitol on January 6, 2021. And Democrats have attempted to pin other deaths that happened after the melee on the incident.

Smith’s indictment blames Trump’s words and actions for the incident taking place which would then make him responsible for the death, or deaths, and thus carry the potential for the death penalty.

“The other alleged crimes in the January 6 indictment against Trump include lengthy prison terms as penalties as well,” the author said.

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