Here’s my latest article which ran in yesterday’s The American Spectator. It has caused a bit of a stir online with a great deal of comment pro and con.

I was up against a very short deadline when I banged this out. The section dealing with conspiracy to defraud the government needs refinement which I will provide in a follow up article. But, for now, here’s my quick take on the election fraud indictment of Donald Trump.

Trump’s Third Indictment Is Ludicrous – The American Spectator | USA News and Politics

George Parry

Under the brave new theory of criminal liability set forth in the election conspiracy indictment of former President Donald Trump, former Vice President Al Gore and the members, advisers, and lawyers of his 2000 presidential campaign belong in prison. The same goes for actor Martin Sheen and other Hollywood celebrities for their actions in the wake of the 2016 election. 

Let me explain.

The indictment, filed Tuesday, charges three counts of conspiracy and one substantive count of obstruction related to an alleged effort to overturn the outcome of the 2020 election. The indictment avers that this effort was based on “dishonesty, fraud, and deceit” because Trump and his unindicted co-conspirators knew that their claims of election fraud were untrue. (READ MORE: Donald Trump Indicted Yet Again)

The indictment magnanimously allows that 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.”

But Trump supposedly violated the law by acting on those false claims. He and his co-conspirators allegedly became felons by urging state officials to search for voter fraud, proposing substitute electors in swing states, and attempting to persuade then–Vice President Mike Pence that he could legally refuse to count certain electoral votes when he presided over the Electoral College on Jan. 6. 

Although the indictment acknowledges that none of these efforts were successful, it nevertheless avers that they constituted “three criminal conspiracies,” to wit:

 A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified….

A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified….

A conspiracy against the right to vote and to have one’s vote counted.

To put it mildly, this indictment stretches the law of conspiracy to the breaking point and beyond. It effectively criminalizes constitutionally protected political discourse and election challenges. 

While the indictment specifies Trump’s alleged deceptions, it fails to describe any actions that constitute criminal fraud. Under federal law, fraud is a scheme or plan to swindle victims — including the United States — out of money or tangible property. Trump’s alleged lies to change the outcome of the election may be many things, but they do not establish a legally cognizable criminal fraud.

[NOTE: There is legal authority for charging a conspiracy to defraud by interfering or obstructing the lawful functions of government by deceit, fraud or trickery. A recent Supreme Court decision has brought that line of cases into question and will be the subject of a future article.]

As for the alleged conspiracy to “corruptly obstruct and impede” the Jan. 6 Electoral College vote count — where is the legally recognized criminal corruption? Trump and his lawyer co-conspirators considered, advocated, and acted on many controversial and highly questionable legal theories regarding the use of alternative slates of electors, but where is the law that says that acting on such theories is legally corrupt? And where does the criminalization of such behavior leave otherwise legally protected political speech and the right to challenge official actions?

And then there is the alleged conspiracy against the right to vote and to have one’s vote counted. This is based on the theory that Trump tried to nullify the votes of swing-state voters by advocating the use of alternative electors. 

But that supposed civil-rights violation is based on 18 U.S.C. Sec. 241, a statute that traces its origins to the post–Civil War Reconstruction era when the Ku Klux Klan committed acts of force, terrorism, and violence to discourage blacks from voting. Indeed, one alternative provision in that statute outlaws two or more persons going “in disguise [read KKK masks and robes] on the highway, or on the premises of another, with intent to prevent to hinder his/her free exercise or enjoyment of any right” such as the right to vote. (READ MORE: Trump Leads Big Time in New Poll)

In short, the application of this statute to Trump seems to be a stretch too far.

Finally, Trump is charged with one substantive count of obstructing the proceedings of the Electoral College on Jan. 6. This is despite the fact that he has not been charged with instigating the Capitol Hill riot that delayed the electoral vote count.

So where does this lead, and what does it portend? If this legal theory is allowed to stand, then a politically partisan prosecutor could criminally charge anyone mounting a future election challenge. All it would take would be for the prosecutor to allege that the challenge was undertaken in bad faith. 

The danger to free speech and the chilling effect on the willingness of candidates to seek public office can’t be overstated. The damage to our already onerous politics and electioneering would be incalculable.

Consider, for example, the 2000 presidential election and the Supreme Court case of Bush v. Gore. Recall that the election’s outcome hinged on the narrow margin of victory in Florida. In that case, candidate Al Gore refused to concede the election and demanded a recount limited to heavily Democrat counties in Florida. It was anticipated that this would find additional votes for Gore.

From a legal, ethical, and commonsense standpoint, Gore’s proposal was utterly dishonest and unfair. He and his lawyers had to have known that what they were advocating was underhanded and fraudulent. Nevertheless, in and out of court, they kept fighting for this one-sided recount until the Supreme Court mandated a statewide recount in all counties that included Republican as well as Democrat strongholds.  

So, under the theory of the Trump indictment, wouldn’t Gore and his team be criminally prosecuted?

Similarly, recall that in the wake of the 2016 election, actor Martin Sheen and other celebrities appeared in television ads urging electors from states carried by Trump not to vote for him in the Electoral College. Applying the Trump indictment’s legal standards, shouldn’t these celebrities be prosecuted for conspiring to deprive Trump’s supporters of the right to have their votes counted? (READ MORE: Did a Hunter Biden Lawyer Break the Law in a Really Bizarre Way?)

These are but two examples of where the expansive legal theory underlying the charges against Trump can take us. 

Given the ludicrous and outrageous nature of the indictment, I expect that Trump’s legal team will promptly move to dismiss the charges for failure to state an offense. That will set in motion years of litigation and appeals. But, even if Trump ultimately prevails in having the charges dismissed, the political and financial damage will have been done.

For, in our system of criminal justice, the process is the punishment.

George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net.