After Charging Former President Donald Trump, Special Counsel Jack Smith Could End Up Being Indicted if Trump Wins Case Against Him, Dershowitz Speculates



OPINION: This article may contain commentary which reflects the author’s opinion.

Longtime Harvard law professor Alan Dershowitz dropped a bombshell during an interview on Wednesday to discuss special counsel Jack Smith’s growing cases against former President Donald Trump.

The interview on Fox Business Network came a day after Smith filed four felony charges against Trump related to the Jan. 6, 2021, riot at the U.S. Capitol Building.

Trump was charged late Tuesday with four counts — willful retention of national defense information, conspiracy to obstruct justice, and false statements. According to the Daily Mail, those charges bring a maximum of 55 years in prison, which would effectively be a life sentence for the 76-year-old former president. Previously, Smith charged Trump with 40 counts over allegations related to his possession of classified documents, which, as president, he said he declassified prior to leaving office.


In his interview, Dershowitz said that Smith himself could actually be indicted should Trump prevail in his case.

“You know the worst thing about this indictment, under the terms of this indictment, Jack Smith can be indicted. Let me explain to you why,” Dershowitz said. “The statute says the following, two or more persons conspire to injure and deny somebody the free exercise or enjoyment of any right or privilege secured him by the constitution.

“What if a court ultimately rules that Donald Trump had a right under the First Amendment to make his Jan. 6 speech and to do what he did? Then Jack Smith will have conspired to deny him of that right. That’s how serious this is,” Dershowitz said.

“Jack Smith … deliberately, willfully and maliciously leaves out the words that President Trump spoke on Jan. 6 in his terrible speech, which I disagree with, but what he said was, ‘I want you to assemble peacefully and patriotically,'” Dershowitz noted further (see below).

“Jack Smith leaves that out. That is a lie, a lie, an omission lie, and if you’re going to indict somebody for telling lies, don’t tell lies in the indictment,” Dershowitz continued. “If you’re going to indict somebody for denying people their constitutional rights, don’t deny them their constitutional rights by indicting them for free speech. That’s how hypocritical this is.”

“The Supreme Court has said in an opinion by Chief Justice William Rehnquist … under the First Amendment there is no such thing as a false opinion or a false idea. The response to a false idea is the marketplace of ideas or Election Day,” Dershowitz explained further.

“So you’re absolutely right, this is a very, very dangerous indictment, dangerous to the First Amendment and also dangerous to the Sixth Amendment because it directly goes after Trump’s lawyers, names them as unindicted coconspirators without giving their names, but basically says they’re criminals for giving him advice on how to challenge the election,” he said.

In addition to Smith’s charges, “Trump is already facing 40 federal charges in Florida relating to his handling of sensitive government documents after leaving office, and is due to stand trial in New York next year accused of falsifying business documents after making a hush money payment to porn star Stormy Daniels,” the UK’s Daily Mail reported earlier this week.


As for the Jan. 6 case, it was assigned to U.S. District Judge Tanya Chutkan, an Obama appointee, who has been called “the toughest punisher” of the rioters who have come before her court.

Last year, The Associated Press noted: “Chutkan has handed out tougher sentences than the was seeking in seven cases, matched its requests in four others and sent all 11 riot defendants who have come before her behind bars.”


The story, which ran under the headline, “In Jan. 6 cases, 1 judge stands out as the toughest punisher,” added: “In the four cases in which prosecutors did not seek jail time, Chutkan gave terms ranging from 14 days to 45 days.”