In a recent development surrounding the indictment of former President Donald Trump, Harvard Law School professor emeritus Alan Dershowitz has raised concerns about the potential application of a “fraud” standard to Special Counsel Jack Smith. Dershowitz argues that Smith could be subject to indictment himself, citing his omission of a key portion of Trump’s speech in Washington, D.C. on January 6, 2021.
The indictment against Trump includes four counts, one of which is “conspiracy to defraud the United States.” However, Dershowitz highlights that Smith’s account of Trump’s speech at the “Stop the Steal” rally echoes the errors made by House Democrats during Trump’s second impeachment trial. Specifically, Smith focused on Trump’s use of the phrase “fight like hell” but omitted a crucial sentence emphasized by Trump’s defense team: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
Dershowitz conveyed his belief to the Megyn Kelly Show podcast that, under his own “fraud” standard, Smith’s omission of Trump’s “peaceful” rhetoric could potentially lead to charges against the Special Counsel himself. He argued that a lie by omission, according to the law, could be as serious as a lie by commission.
The repetition of the error made by House impeachment managers in Trump’s Senate trial appears to be deliberate, as these phrases formed a central part of the proceedings. Trump’s legal team even presented footage of Democrats using similar “fight” rhetoric to demonstrate its common usage.
Throughout the trial, Trump’s defense team repeatedly emphasized the fact that the former President encouraged his supporters to rally “peacefully” at the Capitol. This stance played a significant role in Trump’s successful defense against the House impeachment charge of incitement.
Notably, Smith did not formally charge Trump with incitement, but in his statement to the press, he asserted that Trump’s “lies” about the election were responsible for the riot, which insinuates a claim of incitement.
As the case unfolds, the inclusion of Smith’s potential indictment raises questions about the accuracy and fairness of the charges brought against Trump. The matter has sparked debates about the role of prosecutors and the significance of accurately portraying all aspects of a case.