'Unlawful benefit': Why Jack Smith may have 'evidence' Trump 'acted corruptly'

07 August 2023

Editor's note: The headline was corrected for clarity.

United States Justice Department special counsel Jack Smith's indictment of former President Donald Trump for "Obstruction of and Attempt to Obstruct and Official Proceeding" — the January 6th, 2021 congressional tallying of President Joe Biden's 2020 Electoral College victory — is a provable case with recent legal precedent, explainedThe Guardian's Hugo Lowell on Monday.

"The count is notable, because — based on a review of previous judicial rulings in other cases where the charge has been brought — it may be one where prosecutors will not need to prove Trump knew he lost the election, as the former president's legal team has repeatedly claimed," Lowell said. "The obstruction of an official proceeding statute has four parts, but in Trump's case what is at issue is the final element: whether the defendant acted corruptly."

Norm Eisen, who served as special counsel to the House Judiciary Committee during Trump's first impeachment, told Lowell that "there's no need to prove that Trump knew he lost the election to establish corrupt intent" because "the benefit under the statute is the presidency itself — and Trump clearly knew that without his unlawful actions, Congress was going to certify Biden as the winner of the election. That's all the corrupt intent you need."

Lowell noted that Smith has "evidence that Trump knew of the significance of impeding the vote certification when he pressured his vice-president, Mike Pence, to interfere, saying he otherwise could not remain president." Smith also alleges in his complaint, Lowell continued, that Trump "implored Pence to accept the fake slates of Trump electors from battleground states and delay proceedings, or reject the Biden slates entirely."

Lowell recalled the ruling argument from District of Columbia District Court Judge Royce Lamberth when he sentenced January 6th defendant Alan Hostetter.

"Even if Mr. Hostetter genuinely believed the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with consciousness of wrongdoing," Lamberth opined. "Belief in the greater good does not negate consciousness of wrongdoing."

Lowell added that Lamberth invoking a "stricter interpretation of 'corruptly' to mean 'unlawful benefit'" means that "prosecutors could simply argue Trump gained a benefit he was not otherwise entitled to: still being president because Congress had not announced Biden as the next president."

Lowell's complete analysis continues at this link.

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