WSJ: Smith’s ‘Broad Theory’ Indictment ‘Troubling’

Special counsel Jack Smith’s latest indictment issued to former President Donald Trump is “a remarkably broad theory” of conspiracy to defraud the U.S., and one with “troubling implications,” according to The Wall Street Journal editorial board.

Trump on Tuesday was indicted on charges arising from efforts to overturn the 2020 U.S. presidential election.

While saying Trump’s “post-election behavior in 2020 was deceitful and destructive, and his malfeasance on Jan. 6, 2021, was disgraceful,” the Journal’s editorial board asks, “but was it criminal?”

“Mr. Smith’s theory seems to be that if a president and his ‘co-conspirators’ are lying, and then take action on that lie, they are defrauding the U.S.,” the WSJ board wrote in a Tuesday opinion column.

“This potentially criminalizes many kinds of actions and statements by a president that a prosecutor deems to be false. You don’t have to be a defender of Donald Trump to worry about where this will lead. It makes any future election challenges, however valid, legally vulnerable to a partisan prosecutor. And it might have criminalized the actions by Al Gore and George W. Bush to contest the Florida election result in 2000.”

The Journal’s board said Smith’s 45-page indictment includes no evidence tying Trump to the Oath Keepers or Proud Boys who breach the U.S. Capitol on Jan. 6, 2021.

“Mr. Trump is also not charged with encouraging an ‘insurrection,’ which is the word and charge leveled by the press corps and Democrats,” the Journal’s editorial board wrote.

Not only that, according to the board, Smith’s indictment conceded Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.”

“In other words, Mr. Trump can lie about the election all he wants. But the indictment says Mr. Trump broke the law when he acted on those lies,” the Journal’s editorial board said.

Besides its concern about future election challenges, the Journal’s board also cited Nixon v. Fitzgerald, a 1982 Supreme Court ruling the president “is entitled to absolute immunity from damages liability predicated on his official acts.”

“That was a civil, not a criminal, case,” the Journal’s editorial board wrote. “But lobbying his own Justice Department to investigate voter fraud, or even lobbying state officials to find fraud, is arguably within a president’s official duties if he believes fraud occurred.”

The Journal’s editorial board concluded its opinion column with a comment about the 2024 presidential campaign, likely between Trump and President Joe Biden, being one “that rotates between courtrooms and rallies.”

“We’ve argued that an indictment of a former president should be based on serious charges with enough evidence to convince most Americans that it is justly brought,” the board wrote.

“We doubt most Republicans will see this one in that light, and that means we are headed for more difficult and dangerous months ahead.”