Prominent lawyer Alan Dershowitz said Wednesday that special counsel Jack Smith will have a hard time proving key elements of his case against former President Donald Trump.
Smith secured the additional indictment against Trump on Tuesday, nearly two months after the Supreme Court ruled in favor of Trump's immunity claim in a lawsuit stemming from an earlier indictment Smith obtained in connection with Trump's efforts to challenge the results of the 2020 presidential election. Dershowitz said Smith will have an “uphill battle” to prove that he knew Trump lost the 2020 election to then-Vice President Joe Biden. (RELATED: Alan Dershowitz says he will “do everything in his power” to prevent Judge Marchan from overturning Trump's conviction)
“The indictment alleges that Donald Trump knew and believed he lost the election. How is the government going to prove that?” Dershowitz asked. “Trump never said that to anyone, and he never wrote that anywhere. Did he ever think that? I don't know. Did he say that on an illegally wiretapped phone call? I don't think so.”
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“I've spoken to President Trump about this,” Dershowitz continued. “I think he's wrong. I think he lost the election fair and square. I'm not talking about Russian influence or all of that outside stuff, but in terms of the vote count, that's exactly what I'm talking about right now. I think he lost Georgia, I think he lost Arizona. I think he lost enough states to make sure that Joe Biden is duly and properly elected president of the United States. It's not a crime not to believe that. In fact, the indictment says it's not a crime to talk about that or to the contrary. But if he believed that, if he honestly believed that, if he convinced himself that, if he thought and believed that he won the election, even if he was wrong, then all of the actions that he is alleged to have taken are protected by the First Amendment, the Second Amendment and the Twelfth Amendment.”
Dershowitz said that if Trump truly believed he won legitimately, his actions were no different from other historic challenges to election results, including the 2000 presidential election between Al Gore and George W. Bush, the 1876 presidential election between Rutherford B. Hayes and Samuel Tilden and the 2016 presidential election between Trump and former Secretary of State Hillary Clinton. (Related: 'Abusive': Alan Dershowitz, Greg Jarrett and Jack Smith allege Trump used 'intimidation tactics' against judge)
“I think it's going to be an uphill battle for the prosecutors to win this case. Now they will win, but it won't be that hard in the District of Columbia. They could have charged him for eating a salami sandwich and a jury in the District of Columbia would convict him,” Dershowitz said. “We'll wait and see what the instructions are, whether those instructions require a jury to find beyond a reasonable doubt, based on hard evidence, not speculation, that Donald Trump actually knew and believed that he lost the election and that he was just lying.”
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