Is it legal for you to chew gum? If we asked you that question, your obvious answer would be, of course it is legal for me to chew gum. Is it legal to tie your shoes? Again: Of course, it is legal for me to tie my shoes. Now imagine a rogue prosecutor tries to come up with a novel legal theory that it is somehow a death penalty crime if you participate in those two perfectly legal activities at the same time. That is what Jack Smith has effectively done in charging Donald Trump with fake “crimes” related to January 6.
One of the big talking points that all the liars keep spouting is that Trump “lost 60 court cases” related to election fraud in 2020. That is a brazen lie. No such thing happened. It is now as credible as the “17 intelligence agencies” that claimed Russia collusion was real, or the “51 former intelligence officials” who said Hunter Biden’s laptop was Russian disinformation.
There were only three election fraud cases that were heard in 2020. Trump’s legal team won two of them and lost one. The other 57 ATTEMPTED cases in 2020 were dismissed by the courts “without standing.” The courts never looked at the evidence in the first place. Judges reasoned that it was easier to cower under their desks than to confront the historical horror that had just taken place right out in the open.
Once all of the court challenges had been exhausted, Trump’s legal team explored “novel” theories to prevent the certification of the election. It is a perfectly legal activity to propose novel legal theories. That’s the gum-chewing in the simplified example above. You are essentially playing “what-if,” and courts will ultimately decide if the novel theory was or is valid. You even have the right here in America to propose novel legal theories that seem crazy or absurd (which Trump’s was not).
Back in 2015, a Hmong couple was getting a divorce in a Minnesota case. The husband proposed a novel legal theory: Everyone in the courtroom had to drink the blood of a rooster first, prior to the proceedings beginning. That way, he argued, they would be able to tell who was being honest and who was lying. (Diversity is our strength!)
That’s pretty wacky as far as novel legal theories go—but it wasn’t illegal! He wasn’t charged with a crime. The judge simply said, “Nah, we’re not going to do that.”
In Trump’s case, the novel legal theory was proposed by John Eastman, a former professor and dean at Chapman University School of Law. Eastman’s novel theory was simple: Do what happened in the 1876 Hayes vs. Tilden race.
There were widespread allegations of fraud in that election. Some states sent dueling slates of electors to Washington, DC. The vice president tossed the dueling slates, and Congress then spent a couple of months hashing it out to determine who the next president would be. Rutherford B. Hayes became president months after he was supposed to.
The Electoral Count Act was signed into law several years later to codify this process, which begins with the vice president sending slates of electors back to the disputed states. Trump was not trying to “overturn the election,” as noted liar and former Vice President Mike 30-Pence-of-Silver is claiming. The vice president has broad authority to accept or reject slates of electors and send them back to the states so they can iron things out.
Do you believe for one second that Kamala Harris won’t do this in 2024 if Trump wins the election in a blowout?
The second piece of Jack Smith’s puzzle is that Donald Trump continued talking about the fact that the election was stolen, even as these novel legal theories were attempted. That’s the “tying your shoes” part of the metaphor. Everything that Donald Trump said as a sitting president and political candidate through that ordeal was constitutionally protected speech. If presidents cannot say anything they damn well please in America, then no one can.
This legal process would have played out if the FBI and the Department of Homeland Security had not staged the fake January 6 “insurrection.” Maybe Trump would have succeeded and maybe he wouldn’t have. But he wouldn’t have been indicted for any of this if it were not for January 6.