Let me start this article out by saying that I am not a Republican, nor do I much like Donald Trump either as a politician or as a person. He's a vile, pathological lying, bigoted and overall crass person. The man literally has almost no redeeming values. With that said, I also don't like when even the vilest of persons, like Donald Trump, isn't getting a fair shake. Let's explore.
Jack Smith's 2020 Election Indictment
I recently published a news article discussing this very indictment. I've withheld making any comments over this indictment solely because that information was newsworthy. Meaning, passing along this information timely to Randocity's readers was important. Yes, it is important. However, there are some problems with this indictment that few news channels are discussing. The first and biggest problem is...
Presidential Immunity
Many of the statements included in Jack Smith's indictment were made while then President Trump was still a sitting President. He made the statements while officially holding the office of President of the United States.
The President of the United States is entitled to Absolute Presidential Immunity, shielding the President from lawsuits while performing business as President. However, some in the judicial system believe that Presidential Immunity is not absolute, meaning that criminal conduct performed by the President (outside of Presidential job responsibilities) may not be immune from prosecution.
I'm not convinced that that's the correct course for the United States. While I don't want rogue Presidents performing illegal criminal actions, I also don't want the DOJ able to apply spurious lawsuits on either a sitting President or, more importantly, a former President after-the-fact.
The question remains, were the statements that President Trump made regarding January 6th and those involving the placement of fake electors considered within the job role of President? While I would love to say, "No", I am not in a position to make that judgement. Only a court can. That means it's the responsibility of Jack Smith to have a court determine if Trump's statements are admissible towards the case he is bringing. Meaning, many of the statements made by Trump included in Jack Smith's indictment were made while Donald Trump was still President.
The question is then whether the statements are protected by Presidential Immunity. Jack Smith would need to first establish if any or all of Trump's statements can be admitted as evidence or if they must be excluded as part of Presidential Immunity that Trump held at the time.
"At the time"
Here's another problem that is born out of the above. Presidential Immunity is clearly active while a person is actively holding office as President of the United States. Once a person leaves office and becomes a former President, all of the acts performed AS PRESIDENT should still remain protected under Presidential Immunity. If not, it means that as a former President, all actions made by a then President can, at the time they become an ex-President, become fodder for criminal litigation.
If America starts trying and convicting each and every President as soon as they leave office, where are we as nation? More than this, does Presidential Immunity really exist? No. Actions performed by a President during his or her tenure in office must remain sacrosanct even after leaving office. Those actions were performed while faithfully executing the duties as President. Even when the person leaves office and becomes an ex-President, those Presidential years remain a sacrosanct bubble protected by Presidential Immunity in perpetuity. That means that an ex-President cannot be tried for actions performed WHILE President after becoming an ex-President.
This should go without saying. If America allows the justice system to begin prosecuting every former President for actions performed while in office, who would ever want to become President?
However, any person who is not President CAN be tried and convicted for actions performed while NOT President, either before being elected or after becoming an ex-President.
Jack Smith is Barking up the Wrong Tree
There were many ways a lawsuit could manifest against Donald Trump involving January 6th, such as involving Treason and Sedition, neither of which are named in Jack's current lawsuit as charges. Both Treason and Sedition are high enough and serious enough crimes that these charges would easily negate Presidential Immunity by a landslide. After all, no President should need to ever perform Sedition or Treason in the execution of Presidential duties and responsibilities.
On the other hand, the four counts levied by Jack Smith are as follows:
- 18 U.S.C. § 371 -- Conspiracy to Defraud the United States
- 18 U.S.C. § 1512(k) -- Conspiracy to Obstruct an Official Proceeding
- 18 U.S.C. §§ 1512(c)(2), 2 -- Obstruction of and Attempt to Obstruct an Official Proceeding
- 18 U.S.C. § 241 -- Conspiracy against Rights
These obstruction and plain-old conspiracy charges don't instantly negate Presidential Immunity. In fact, these charges are a bit open for being contested. These above crimes are not necessarily serious enough to warrant dropping Presidential Immunity over them and can also be interpreted in ways that make the prosecutor appear prejudicial (i.e., biased) towards the defendant.
Thus, the indictment Jack Smith has brought is fraught with problems, specifically around statements and actions made and also the specific charges being levied, all while Donald Trump still actively held Presidential Immunity.
Unnamed co-conspirators hold no such immunity from prosecution. These people should be brought up on charges for the actions they performed and statements they made around the 2020 Election, including newscasters and congressional members. However, Donald Trump's statements and actions shouldn't be used to prosecute Donald Trump while Trump still held Presidential Immunity, at least not until Jack Smith has a court determine which statements (and actions) ARE and ARE NOT protected by that Immunity. Until the Presidential Immunity issue is resolved, Jack Smith is barking up the wrong prosecutorial tree.
In fact, Jack's whole indictment now actually does look like a witch hunt as Donald Trump suggests. Without first resolving whether Trump's statements were protect by Presidential Immunity, transcribing those statements into an indictment is extremely risky and premature AND makes Jack Smith look like he's rushing to get this lawsuit done, but quite improperly and with prejudice.
A prosecutor can't simply dismiss steps because they're inconvenient or slow the process. Unfortunately, making missteps like this only serves to weaken Jack's case against Donald Trump, probably giving Trump the opportunity to have the entire case dismissed based on prejudicial treatment.
Instead, I would have preferred if Jack Smith had had a court first determine whether the statements transcribed are or are not, in fact, protected by Presidential Immunity. Let's resolve this issue first. If some or all statements are protected by Presidential Immunity, then the statements cannot be held as evidence against Donald Trump or against Donald Trump's alleged actions for the charges being levied.
Better, revise the charges to include Sedition and Treason so that there is no question as to whether Presidential Immunity is involved.
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