We've been through all of this before and each time the Biden Justice Department (yes, really), liberal and conservative jurists, and established legal experts have come to the same conclusion: Donald Trump may have acted unwisely on Jan. 6, 2021, but he never broke any laws.
Never.
The Washington Post, one of his most ferocious critics, completed a stunning investigative report in January of 2022.
The report quotes distinguished prosecutors, defense lawyers, law professors and judges on whether our country's former commander in chief should be criminally prosecuted for anyof his actions on Jan. 6, 2021, or even on days leading up to that event.
The thrust of the report — which got little media attention — said he hadn't committed any crime.
Not a single one.
The standard variety Democrat, of course, and the Nancy Pelosi, Liz Cheney Select Committee to investigate the cause of the rioting, tried to put the former president in a jump suit for even challenging the outcome of the election.
This effort, however, was perfectly legal, had been done many times in this century by the Democrats and was vigorously defended by then-Speaker Pelosi.
She grandly cheered her party on. (And if successful, as Karl Rove noted in The Wall Street Journal, would have put Climate Warming's town crier John Kerry in the Oval Office.)
Cheney was always trying to maneuver Trump into prison.
She maintained — falsely — that the former president was conspiring with the Oath Keepers and the Proud Boys to forcibly overthrow the U.S. government.
The Journal, a harsh critic of Trump's "stolen election" theory, said her "seditious conspiracy" accusation was in no way persuasive and that she had "offered no evidence" that Trump had communicated directly with either group on such a treacherous scheme.
Even The New York Times was critical of Cheney's committee performance.
In a front page story, the Times told its readers that her committee was employing prosecutorial techniques "typically used against mobsters and terrorists" as it seeks "to develop evidence that could prompt a criminal case" against Trump and his allies. The Times then pointedly noted that the Select Committee — no doubt with Cheney in mind — "has no authority to pursue criminal charges."
Despite the Herculean effort by liberal and leftwing political activists, as well as Republicans like Liz Cheney, to put Trump behind bars, the Post, to its credit, wouldn't go along. According to its conclusions, the Justice Department would find it difficult to get an indictment and even more difficult to get a conviction.
The legal experts with whom they talked believed that much of what Trump's foes had accused him of has traditionally been protected by the First Amendment.
The Post noted he was not the first politician to "call on his supporters to fight," a word that is commonly used in political campaigns but far from a call to forcibly break into a nation's Capitol building and physically threaten lawmakers.
And while Trump told the crowd to march to the Capitol, "there is no evidence," wrote the Post, "they planned to storm the building." (It's worth repeating "no evidence.")
The Post also thought it was improbable that Trump would be prosecuted for demanding that Georgia Secretary of State Brad Raffensperger, come up with enough votes to over-come Biden's lead. "I just want to find 11,780 votes, which is one more than we have,"
Trump told Raffensperger. But he added this comment which his enemies normally omit: "Because we won the state."
Credible legal experts quoted by the Post said that if the president genuinely believed the election was stolen it would be hard to charge him with a federal crime for contesting the outcome. "The key to pretty much all of these crimes he's been accused of," former federal prosecutor Randall Eliason told the Post, "would be proving corrupt intent."
But there would be no corrupt intent if Trump could argue that his legal team had told him that Vice President Mike Pence had no authority to deny Biden the presidency but that he arbitrarily decided to dismiss their advice.
But Trump was repeatedly told by his top election adviser, John Eastman, that he had that authority.
So where's the crime?
Eastman was no ambulance chaser.
He had clerked for U.S. Supreme Court Justice Clarence Thomas in the late 1990s, had been chairman of the distinguished conservative Federalist Society, taught at Chapman University in Southern California where he also served as dean.
So legal experts believed there was no way Trump would be prosecuted for taking Eastman's advice.
And there are numerous people who served with the former president, including his attorney general, William "Bill" Barr, who would testify that Eastman had clearly persuaded Trump that his view of the law was valid. (Two other legal advisers, Rudy Giuliani and Sidney Powell, were also soft on Eastman's position.)
Other constitutional experts interviewed by The New York Times, another fierce opponent of the former president, sided with Eliason's view that corrupt intent would have to be proved to put Trump in legal peril.
Eliason's opinions carry weight since he is a much celebrated scholar who spent 12 years as an assistant United States attorney for the District of Columbia.
Daniel L. Zelenko, a defense lawyer and former prosecutor, appeared to line up with Eliason as well.
He told the Times that the key to making Trump legally vulnerable is to show that he knew the election was not stolen but tried to stay in power anyway.
Samuel W. Buell, a Duke University law professor made the same case. "You need to show," he also told the Times, "that he knew what he was doing was wrongful and had no legal basis."
But Trump, under Eastman's powerful influence, clearly believed he was on the right side of the issue.
The impending indictment of Trump resulting from Special Counsel Jack Smith's Jan. 6 investigation rests on a statute which says, in essence, that the former president can be prosecuted for pressuring Congress not to certify electoral votes.
The Pelosi-Cheney Select Committee would indict him on those grounds. But an opinion by a three-judge panel of the U.S. Court of Appeals for the D.C. circuit in April sharply challenges that position.
The question to the appellate court was whether non-violent participants in the Jan. 6 riot could be charged with attempting to obstruct Congress from voting for the next president. Judge Kastas, in dissent, said no.
He read the statute as limited to evidence-tampering, not just participating in a peaceful walk to the Capitol or vigorously challenging the electoral college vote by Congress.
And the Post makes it clear that it sides with Kastas's opinion, calling him "one of the most respected Republican-appointed jurists on the courts of appeal and his opinion will be read closely by Supreme Court justices if the matter reaches them."
Two of the three judges allowed the prosecution to go forward, each writing separate opinions. But even the opinion with the most capacious interpretation of the statute acknowledged "there is no precedent" for using it "to prosecute the type of conduct in this case."
Translation: it shouldn't be used for prosecuting those notengaged in violence.
The Post also condemns Smith's take on the case against Trump as "resting on aggressive
prosecutorial theories" and for its "legal flimsiness."
Since the rioting by a minority of Trump supporters at the Capitol, two criminal charges have been most extensively debated: obstruction of an official proceeding and defrauding the United States.
But the obstruction charge focuses on efforts to block government proceedings by destroying a "record, document or other object."
Where does Trump fit into that category? He doesn't.
Judging from media accounts, the next charge that Smith might launch against Trump is conspiring "to defraud the United States."
In defining that statute, the Justice Department manual quotes a Supreme Court decision in Hammerschmidt v. United States, 265 U.S. 182 (1924), that says it "means primarily to cheat the government out of either money or property." But Trump, the Post stresses, "did not do that."
The Post doesn't put it past Smith, however, to "rely on a peripheral and uncommon use of the statute" to charge Trump anyway.
The Post is also fearful that Smith will return an indictment that will not stand up to legal scrutiny and permit almost any deceptive act by politicians to jail their political opponents.
The Supreme Court in two 9-0 decisions this term tossed a case against Andrew Cuomo's administration, warning prosecutors against a government theory under which "almost any deceptive act could be criminal."
Chris Christie is campaigning against Trump in the GOP primaries as if Trump is guilty of the crimes launched by the Biden administration, the Alvin Bragg indictment in New York and the Fani Willis effort in Atlanta.
There are plenty of experts who think unbiased jurors would refuse to indict in any of those cases since they believe proof of guilt is non-existent. (Dershowtiz said he had never seen a case with "so many holes in it" as Bragg's.)
Trump's foes think Smith has finally nailed Trump with his newest indictment: accusing the former president of orchestrating an effort to delete the security footage from Mar-a-Lago in order to "prevent the footage from being provided to a grand jury."
According to CNN, Mar-a-Lago employee Carlos De Oliveira is accused of obstructing the investigation by also considering removal of the security footage.
But hold on.
The indictment never claims that Trump or De Oliveira or anyone else tried to remove the footage, though they surely thought about it.
How does not doing a potential criminal act, even though momentarily contemplated, turn into a jail sentence?
Where are the civil libertarians now that they're desperately needed to save this country from a ruthless and dangerous Democratic regime?
Mr. Ryskind, a former editor and co-owner of Human Events, is the author of "Hollywood Traitors," a Regnery book on how the Communist Party came close to capturing the movie industry.
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