By Bill Pan and Jan Jekielek
The federal indictment against former President Donald Trump over his disputing the result of the 2020 presidential election has serious constitutional issues and won’t be looking good in the eyes of the Supreme Court, according to Horace Cooper, a constitutional law professor at George Mason University.
“Having read through this latest indictment, there are some significant constitutional infirmity concerns that I believe should have led our Attorney General Merrick Garland to decide to either send these back for a redo, or to not allow them to go forward at all,” the professor said in an interview on EpochTV’s “American Thought Leaders.”
“The counts appear to focus on what are core constitutionally protected activities, including free speech,” Mr. Cooper told host Jan Jekielek, noting that Mr. Trump, who was president at the time, was within his right to challenge the outcome of an election. “It appears that the core behavior, that act of challenge itself, is criminalized in this case.”
“I think the Supreme Court is going to look with a jaundiced eye at the idea that mere advocacy of a particular position constitutes a crime,” he added.
Charge Based on Media Narrative
Mr. Trump is facing four felony counts outlined in last week’s indictment. He has pleaded not guilty to all charges.
Among the four charges is one count of conspiracy to defraud the United States. Federal prosecutors claim in the indictment that this applies to the 45th president’s efforts to spread “knowingly false claims” that the election was stolen from him.
For this charge to stand, according to Mr. Cooper, it must be held as a fact that, as mainstream media asserted, Mr. Trump did lose the most secure and fraud-free election in the nation’s history.
“We don’t know, actually, what the truth is with regard to the election,” he said, pointing to Mr. Trump’s post-Election Day judicial campaign that raised disputes in several battleground states. Those lawsuits included claims of voter fraud, illegal polling procedures, and ballot and voting machines errors that would invalidate those states’ election outcomes.
“We’re told that Donald Trump’s side overwhelmingly lost. Well, that’s not entirely accurate,” the professor explained. “Many of the instances where these cases were presented, they were in the wrong courts that lacked jurisdiction. There were technical reasons why they didn’t hold trials but actually allowed information to be presented, and then they ruled on the merits.”
“Many in the mainstream media say that the 2020 election was the most secure, most robust, and most accurate election that America as ever had. That thesis has not been tested,” he continued. “But in this indictment, it is assumed that the thesis is accurate. And therefore … any behavior contrary to that must, in some way, be criminal.”
“I believe that this is a step too far,” Mr. Cooper told Mr. Jekielek.
An Ironic Use of Statute
In another charge brought against Mr. Trump, prosecutors cited a Reconstruction-era civil rights law, accusing the former president of attempting to “oppress, threaten and intimidate” people in their right to vote in an election and have their votes counted.
“It is highly ironic that this special counsel is attempting to shoehorn this statute,” Mr. Cooper said, noting that the law was originally created in the 1870s to protect the newly gained voting rights of Republican-leaning black voters who were facing intimidation and violent threats from Democrats at polling sites.
The irony, according to Mr. Cooper, lies in the fact that Mr. Trump’s election lawsuits mostly concerned voting integrity issues in big cities with large black populations, such as Atlanta, Milwaukee, and Philadelphia.
“In general, election fraud disproportionately involves those communities of color. When you look at Justice Department’s conviction rates, where they have charged people and succeeded, they’re overwhelmingly in communities where black Americans and other minorities predominate,” the professor said. “Yet, many of the concerns that the Trump campaign put forward involved the very communities where these type of prior convictions have occurred.”
“Rather than investigate those improprieties, they are seeking to charge Donald Trump,” he continued. “I believe that the District of Columbia Court of Appeals is very likely to say that that particular charge is improperly using this statute.”
District of Columbia: A Fair Venue?
Shortly after the indictment, Mr. Trump said on Truth Social that he wants the case moved to a more “politically unbiased” place like West Virginia, claiming it’s “impossible to get a fair trial in Washington” given the city’s overwhelmingly left-leaning population.
Mr. Cooper agrees with Mr. Trump’s concern. “Just four percent of voters in the District of Columbia supported Donald Trump in 2020,” he said.
By contrast, Mr. Trump received 69 percent of West Virginia votes in the 2020 election.
“I think that there are going to have to be some serious conversations within the court system as to whether or not a D.C. court is an appropriate venue,” the professor added. “It could, in fact, be outcome determinative if this court trial is held in the District of Columbia.”
When asked whether he ultimately believe the charges have any merit, Mr. Cooper said he doesn’t, adding that the right move for the Justice Department would be to withdraw the lawsuit.
“But this is a very highly important narrative in America: If you are not someone like Donald Trump, and the government comes after you, what can you do to stop it?” he told Mr. Jekielek. “We absolutely are focused like a laser on what is happening here. Because if this can happen to Donald Trump, I’m concerned that this can happen to any American.”