Prosecutors claim “Donald Trump actually believed that he lost the election that everything he did was fraudulent that he conspired with unnamed lawyers mostly to affect the election,” Dershowitz said.
“So the government has the burden of proving beyond a reasonable doubt that subjectively Donald Trump actually believed that he lost the election and acted contrary to that belief.”
Nothing in the indictment backs that up, Dershowitz said.
“Now, I read the indictment very carefully. There is no smoking gun,” he said. “There is no one who is credibly prepared to testify that Donald Trump said to him, ‘I know personally I lost the election.’
“There’s a lot of evidence that people told him he lost the election, but you know Donald Trump, and you know that he’s going to make up his own mind, and they’re going to have a very hard time proving that.”
A “hard time proving that” is an understatement.
Even Trump’s worst detractors have to have difficulty believing that he actually thinks he lost the 2020 election. Tens of millions of his supporters have trouble believing it, given the hair-breadth margins of victory President Joe Biden recorded in key swing states, and the evident meddling of the FBI and the barons of social media — not to mention the lingering suspicions of more traditional election fixing that haven’t disappeared.
For Trump himself, who has been unfailingly consistent in his public statements about the vote for the past three years, it’s almost inconceivable.
But, as Dershowitz pointed out, Smith won’t be bringing his case in a jurisdiction of fair-minded Americans. The case is in Washington, D.C. — where Biden took more than 90 percent of the vote.
“Now, it’s the District of Columbia, 90 some-odd percent of the jury pool will have voted against them so they may actually get a conviction from a D.C. jury, but will it survive appellate review and review to the Supreme Court?
“I don’t think so.”
And that, essentially, is where the Smith prosecution is resting its case. He has a history of political prosecutions — including a corruption conviction of former Virginia Republican Gov. Bob McDonnell that was overturned by a unanimous Supreme Court in 2016. (It was an 8-0 vote. The seat left open by the death of Justice Antonin Scalia in February of that year was still open — and Democrats were trying to put Merrick Garland in it.)
This isn’t about pursuing “justice” in the traditional American understanding of the word. It’s about shopping a weak-as-water political prosecution to the most sympathetic jury pool in the country and landing a conviction that would stand as a public smear against the most popular political opponent of the current president.
But it has nothing to do with loyalty to the law.
That’s why, Dershowitz said, “the first motion his lawyers will make will be a change of venue to northern Virginia, where the jury pool will be fairer … and you could move it further, you could move it to southern Virginia, where it’s much more even. You could move it to an adjoining state.”
“Remember, this is a federal indictment. It doesn’t have to be tried within the state or the area. You can make a motion for a change of venue.”