Posted originally on the CTH on October 3, 2024 | Sundance 

The overall prosecution attempt by Jack Smith was fundamentally deconstructed when the Supreme Court ruled mostly in favor of President Trump carrying ‘presidential immunity’ for officials acts while in office.  The ruling meant Smith had to go back to Judge Tanya Chutkan’s court and work through a process of outlining what is and is not an ‘official act’ according to the DOJ.

The result of that approach was made public yesterday, when Judge Chutkan revealed a new 165-page indictment [SEE HERE], essentially a list of evidence the DOJ claims as proof of “unofficial acts” allowing them to jump the hurdle of “official acts.”  However, the reality of Jack Smith’s filing is a story without much legal value. Instead, it is a 165-page Lawfare story created for media promotion.

Many followers have accepted that Jack Smith is not necessarily the person constructing the legal filings. There is a solid argument to be made that Andrew Weissmann, Norm Eisen and Mary McCord are the Lawfare allies tasked with writing the material.  When you read the filing, the manipulation of legalese to shape a narrative story is clear.

As former DOJ Asst AG Jeffrey Clark has noted, the filing attempts to obfuscate the legal requirements of “state of mind” by projecting what President Trump must have thought, as expressed by the opinion of unknown advisors.  Jack Smith says President Trump thought this, without actually providing any evidence of what President Trump thought. Additionally, this Lawfare approach toward including redacted quotes amounts to written testimony, which would never pass muster in any court.

The accused has a right to confront witnesses; however, in written text that questioning becomes impossible.  In essence, Jack Smith violates the principle and stated purpose of the sixth amendment.  This is one of the ways you can tell the filing itself is not intended to outline evidence, but rather to outline a story.  The claimed “evidence” is simply a story the Lawfare team want to deliver in October of an election year.

Almost all of the claimed evidence within the filing would not pass legal challenge.  If the case were to proceed, most of what is written in the motion will not pass the legal scrutiny to make it into actual testimony. All of the claimed witnesses would be challenged, and Jack Smith would be no closer to proving President Trump’s “state of mind” than he was without the witnesses.

Factually and legally, you cannot establish the state of mind of the accused, the earnest belief, simply by referencing what other people said to him.  EXAMPLE BELOW:

[Page 9 – pdf filing]

...”The background to understand the importance of the admission is that Smith is saying (like the J6 Cmte before him) that Trump’s criminal state of mind is established by the fact that many Trump advisors told him that he had lost the 2020 election.

That theory has always been ridiculous because advisors are just that — they advise — the President decides. Their advice is not imputable/attributable to the President’s state of mind.

But there is a little parenthetical on Page 9 that these advisors “were telling the truth that he [Trump] **did not want to hear**—that he had lost ….”

This inherently confesses that Trump disagreed with his advisors telling him he’d lost. That right there negates “the criminal mind” or what lawyers call scienter.  And without the requisite scienter or intent, Trump cannot legally be convicted of a crime.

Trump’s only “crime” is believing that he won the 2020 election, something many Americans both sophisticated and ordinary agree with.” ~Jeff Clark

Cutting through the fog, what this 165-page indictment is really intended to do, is weave a story that the media can push in October of an election year.  Judge Tanya Chutkan rushed approval of the filing to assist the political intents of Jack Smith, Weissmann, Eisen and McCord.

Clark also notes interestingly that nowhere in the signature attribution of the filing itself, is the U.S. Dept of Justice identified as the institution granting Jack Smith legal authorization for the prosecution.  As Jeff Clark notes, “it raises the question of whether use of any Justice Department organ to go after a former President of the United States is constitutional and could comport with the Supreme Court’s July 1, 2024, immunity decision in Trump v. United States.”