On Wednesday, noted attorney Alan Dershowitz predicted that special counsel Jack Smith will face significant challenges in proving a crucial aspect of his case against former President Donald Trump. Smith secured a superseding indictment against Trump on Tuesday, nearly two months after the Supreme Court sided with Trump’s claims of immunity in a previous case related to his efforts to contest the 2020 election results. Dershowitz argued that Smith would face an “uphill battle” in demonstrating that Trump was aware he had lost to Joe Biden in 2020.
“The indictment charges that Donald Trump knew, knew, and believed that he had actually lost the election. How’s the government gonna prove that?” Dershowitz asked. “He never said that to anybody. He never wrote that anywhere. Did he ever think it? I don’t know. Did he say it on a phone call that was illegally overheard? I doubt it.”
The former Harvard University law school professor continued: “I have spoken to President Trump about this. I think he’s wrong. I think he lost the election, fair and square. Now I’m not talking about the influence of Russia and all kinds of things external, but in terms of the counting of votes, that’s just what I’m talking about now. I think he lost Georgia, I think he lost Arizona and I think he lost enough states so that Joe Biden was officially and correctly elected president of the United States.
“It’s not a crime to disbelieve that, in fact, the indictment says that it’s not a crime to speak about that and to oppose it, but if he believed it, if he honestly believed it, if he talked himself into it, even if he was wrong, if he believed it if he thought he had won the election, then everything he’s accused of doing is protected by the First Amendment, Article Two of the Constitution and the Twelfth Amendment,” he added.
Dershowitz argued that if Trump genuinely believed he had won the election, his actions would be comparable to other historical challenges to election results. He cited instances such as the 2000 presidential election between Al Gore and George W. Bush, the 1876 election between Rutherford B. Hayes and Samuel Tilden, and the 2016 contest between Trump and former Secretary of State Hillary Clinton.
“I think it’s an uphill fight for the prosecution to win this case. Now they will win it, it’s not uphill in the District of Columbia. They could have indicted him, for you know, eating a salami sandwich and a jury in the District of Columbia will convict,” Dershowitz said. “We’ll wait and see what the instructions are, whether the instructions require the jury to find beyond a reasonable doubt based on evidence not based on surmise but based on hard evidence that Donald Trump actually knew and believed that he had lost the election and he just was lying.”
WATCH:
A federal grand jury in Washington, D.C., has reindicted Trump on four felony charges related to his alleged attempts to overturn the 2020 presidential election results earlier this week. The 36-page indictment, filed by Smith on Tuesday, seeks to address changes in the case against Trump following the Supreme Court’s immunity decision.
Despite the changes, the superseding indictment continues to charge Trump with the same four crimes, including conspiracy to defraud the United States. The changes indicate that Smith believes the Supreme Court’s ruling will not substantially impede the prosecution’s case against Trump. The updated indictment appears to minimize the direct link between Trump’s actions and his official presidential duties, instead emphasizing the political and personal aspects of his behavior following the election and on January 6, 2021.