Senior writer Dan McLaughlin of the National Review is questioning the legal strategy of Trump’s lawyers. Notably, two precedent-setting cases appear to be absent from the motion to dismiss filed in Jack Smith’s D.C. case.
The first is United States v. Gradwell.
As I have detailed here and here, the central charge against Trump in this case is an alleged “scheme to defraud the United States” under 18 U.S.C. § 371 on the theory that he tried to thwart the presidential-election process by various dishonest means, including trying to get Congress to throw out Joe Biden’s electors and substitute his own “alternative” slates. The problem for special prosecutor Jack Smith is that the United States Supreme Court held unanimously in United States v. Gradwell (1917) that corruption of the elections process is not covered by this statutory crime. Gradwell has never been overruled.
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Smith would have to do one of those things if Trump’s lawyers had challenged the indictment under Gradwell. Amazingly, they did not even cite the case in their brief. Either they didn’t bother to do adequate legal research (or read National Review), or they somehow thought that an old case wasn’t still good law, even though it was a unanimous decision of the nation’s highest court that has never been overruled. Either is inexplicable and indefensible.
The second is Brandenburg v. Ohio.
National Review:
The second thing missing from the motions to dismiss is a challenge to Jack Smith’s effort to hold Trump criminally responsible for the Capitol riot. Paragraphs 96-121 of the indictment, covering seven pages of allegations, detail Trump’s role in summoning the crowd on January 6, inflaming them, and not doing enough once the riot started to calm them down.
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This is, by any standard, an effort to criminalize that speech. Public political speech can, of course, be criminalized, but only in certain narrow circumstances. When the charge is that the defendant used his speech in order to encourage others to commit unlawful acts, there is a longstanding test under Brandenburg v. Ohio: There must be direct incitement of “imminent lawless action.” And yet, while Trump’s team challenges the indictment in general as a prosecution of statements of political opinion, it does not even bother to cite Brandenburg or argue that Trump cannot legally be held responsible for the rioters.
The failure of Trump’s lawyers to cite these cases is extremely curious, at best. However, in Trump’s lawyer’s defense, any motion to dismiss will inevitably be rejected by the foreign-born, Marxist-raised judicial fanatic presiding over his case; one Tanya Chutkan.
These issues will have to be raised on appeal, but the objections do need to be preserved at the trial court level.
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