But he wouldn’t because he’s a Democrat. Smith is part of the protected class.
Harvard Law School professor emeritus Alan Dershowitz says that under his own “fraud” standard, Special Counsel Jack Smith could be indicted for omitting a key portion of then-President Donald Trump’s speech in Washington, D.C. on January 6, 2021.
The indictment charges Trump with four counts, including “conspiracy to defraud the United States.” But in a portion recounting Trump’s speech at the “Stop the Steal” rally, Smith repeats the errors made by House Democrats in Trump’s second impeachment trial: he focuses on Trump’s use of the phrase “fight like hell,” and omits a sentence highlighted by Trump’s defense team: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
Dershowitz told the Megyn Kelly Show podcast on Friday that by his own standard, Smith could be charged with fraud, because of his omission of Trump’s “peaceful” rhetoric.
“Under the indictment itself, Jack Smith could be himself indicted. He told a direct lie in this indictment. He purported to describe the speech that President Trump made on January 6th. And he left out the key words, when President Trump said, ‘I want you to demonstrate peacefully and patriotically. You know, a lie by omission, under the law, can be as serious as a lie by commission.”
The fact that Smith repeated the error of the House impeachment managers would appear deliberate, because these phrases were the crux of Trump’s Senate trial. Trump’s lawyers even played footage of Democrats using similar “fight” rhetoric, to show its common usage.