Harsh criticism has been leveled against special counsel Jack Smith in response to his recent indictment of former President Donald Trump in the District of Columbia for his actions on Jan. 6, 2021. Three of the four counts are for criminal conspiracies — the same sorts of charges leveled against President Richard Nixon’s associates in the Watergate scandal some 50 years ago.

I served as deputy counsel on Nixon’s Watergate defense team and became familiar with the conspiracy laws as a result. A comprehensive academic analysis, titled Prosecution and Defense of Criminal Conspiracy Laws by William & Mary law professor Paul Marcus, was published in 1978. It traces the laws’ origins in English Common Law from the 1200s forward and comments on its uses in the 1970s. I confess I haven’t kept up since then, but I very much doubt much has changed in the intervening 50 years.

The Problems With Conspiracy Laws

Several of Marcus’ points stand out, even today. He suggests that initial prosecutions were based on two theories: (i) It was more dangerous for two or more people to embark on a criminal enterprise than just one; (ii) the government need not have to wait for a criminal enterprise to come to fruition before it could step in and punish the intended wrongdoing. Later, statutes added a requirement that some conspiracy members — not necessarily the defendants — had to have taken an “overt act” in furtherance of the conspiracy. That act, however, need not be criminal in and of itself.

Several other elements evolved in the development of these laws. First, there need not be an actual agreement in furtherance of the conspiracy. Juries could infer one in response to actions by the alleged conspirators. In other words, the law of conspiracy became a “thought crime.” It was dependent not so much on what you were alleged to have done as it was on what the jury could conclude you were thinking when you did it. “Intent,” then, became the centerpiece of the alleged wrongdoing.

Second, once a conspiracy had been shown to exist, it required almost no additional evidence to add in additional co-conspirators. This was largely left to prosecutors’ judgment, the classic prosecutorial discretion. Indeed, in the Watergate cover-up trial, Nixon’s principal accuser, his former lawyer John Dean, testified as to the existence of a cover-up conspiracy. Heck, he admitted running it! It was then next to impossible for his White House associates to achieve acquittals, since most of the three-month trial dwelt on the admitted wrongdoing by others, making it exceptionally hard for them to prove their own innocence: “You worked in the same building; you must have known what was going on!”

As is the case with Trump today, it is especially easy for a jury to infer evil intent when they have long disliked you and your politics in the first place. (READ MORE: Five Quick Things: What Really Brought About Trump’s Atlanta Indictment?)

Third, these laws rarely have been used for prosecutors to step in and prevent a crime. Instead, they have become an additional charge leveled after an actual crime had been committed: Not only did you commit the crime, but you conspired with others to do so in the first place.

Why, you might ask, would prosecutors inevitably toss in this additional charge? Marcus goes into this in great detail: It is far easier to prosecute a case when there is no requirement to show actual wrongdoing by a specific defendant. Instead, it is enough to infer an agreement among two or more parties, with one of them having taken an overt action — any overt action — in furtherance of the alleged agreement.

There is an additional attraction to including conspiracy allegations: the automatic exception to the hearsay rule against testimony on what someone else might have said. Something allegedly said by one co-conspirator can be admitted into evidence in a conspiracy case on the testimony of another co-conspirator. This is particularly helpful to prosecutors when one of the alleged co-conspirators has flipped, entering into a plea bargain for reduced charges in exchange for his testimony against his former colleagues in crime. According to a survey conducted by Marcus, prosecutors and defense counsel alike agreed that this hearsay rule exception was the primary reason for adding conspiracy counts to any criminal case.

Clarence Darrow Weighs In

Regardless of what you may think of Trump and his actions on Jan. 6, it is little wonder numerous legal scholars are heavily criticizing Smith for bringing only conspiracy counts in D.C. — instead of charges of insurrection or seditious encouragement in a jurisdiction where Trump garnered less than 5 percent of the vote in his 2016 race against Hillary Clinton. (RELATED: Third Trump Indictment Is a Replay of History)

According to the First Amendment Encyclopedia, Clarence Darrow, the brilliant defense attorney who defended high school teacher John Scopes for allegedly teaching evolution in Tennessee in the 1920s, strongly believed conspiracy laws to be unconstitutional due to the First Amendment’s free-speech guarantees. In Darrow’s words, conspiracy is “the modern and ancient drag-net for compassing the imprisonment and death of men whom the ruling class does not like.”

This opposition was the centerpiece of his earlier appeal to the Supreme Court in In re Debs (1895):

The American Railway Union, led by Eugene Debs, had struck for higher wages in 1894. Based on the strike’s ensuing violence and the disruption of the railways, a federal court granted the railroads an injunction that prohibited anyone from, among other things, encouraging workers to join the strike…. Darrow appealed the decision to the Supreme Court, where he argued that Debs and the others had been convicted of doing and advocating what is lawful — organizing support for a union.

He claimed that Debs — in a situation eerily similar to Trump on Jan. 6 — had “not encouraged violence and had even cautioned … supporters to avoid any violent activity.”

“If men could no do lawful acts because violence might possibly or reasonably result,” Darrow argued, “then the most innocent deeds might be crimes. To make them responsible for the remote consequences of their acts would be to destroy individual liberty and make men slaves.”

Strong words by a talented advocate, but it should be added that the Supreme Court disagreed and upheld Debs’ fines.

Geoff Shepard came to Washington in 1969 as a White House fellow after graduating from Harvard Law School. He served on President Richard Nixon’s White House staff for five years, including a year as deputy counsel on the president’s Watergate defense team. He has written three books about the internal prosecutorial documents he’s uncovered, many of which are posted on his website, www.shepardonwatergate.com.