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The headlines are consumed with the multiple lawsuits against Donald Trump for the misdeeds that he allegedly—I use the term cautiously—committed both in and out of office. By far the most serious of these cases is the indictment brought by special prosecutor Jack Smith against Trump for his efforts to overturn the results of the 2020 presidential election.
The attacks against these cases move along two parallel tracks. The political track is that Trump is the victim of a political ambush that began with the Steele dossier and continued with the Mueller investigation, followed by two dubious impeachments. In other words, they are efforts to discredit him in the eyes of the voters. Yet at the same time, goes the argument, Hillary Clinton and Joe Biden (with son Hunter in tow) receive kid-gloves treatment for crimes of equal or greater magnitude. Trump’s ability to maintain his standing in the polls stems from the conviction of his supporters that the motives of his accusers matter far more than the guilt or innocence of his actions. So the worse the case looks, the more hysterical Trump’s denunciations of Smith, the stronger his support.
But there is also the legal side to contend with, and here Trump also has defenders of the legality (or at least non-criminality) of his actions. Alan Dershowitz, one of his unhappy defenders, refers to Trump’s “inexcusable, but in [his] view constitutionally protected, role in the terrible events of January 6.” I agree with Dershowitz on the first part of the charge but disagree with him on the second. Even by the high standard associated with prosecutions, the core of this case falls, to use the now common phrase invoked by David Rivkin and Lee Casey, outside “the outer perimeter of his official responsibility.” And the actions here are so far beyond that line that none of the possible defenses seems credible as a matter of law.