I could not more highly recommend Dan’s characteristically stellar analyses of the election-interference indictment that special counsel Jack Smith’s Washington, D.C., grand jury returned and its legal flaws (see here, here, and here). I want to add some context to a discrete aspect of the allegations.

While the 45-page indictment described general schemes to defraud the government, obstruct Congress, and undermine civil rights, Dan notes that it fails to specify “anything that looks like a traditional criminal act” committed by former president Donald Trump. The closest Smith gets to a specific crime, Dan observes, is paragraph 30:

On December 31, the Defendant signed a verification affirming false election fraud allegations made on his behalf in a lawsuit filed in his name against the Georgia Governor. In advance of the filing, Co-Conspirator 2—who was advising the Defendant on the lawsuit— acknowledged in an email that he and the Defendant had, since signing a previous verification, “been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate” and that signing a new affirmation “with that knowledge (and incorporation by reference) would not be accurate.” The Defendant and Co-Conspirator 2 caused the Defendant’s signed verification to be filed nonetheless. [Emphasis added.]

Dan points out that, if Smith were confident in his proof on this score, he could have charged Trump with the separate, straightforward crime of making a false court filing; and since he did not, it’s fair to infer that the prosecutor “doesn’t have terribly strong evidence of knowing falsehood, or of the material falsity of the allegations to the court case.”

I can add some context here because I wrote about this allegation after it emerged publicly. It stems from an October 19, 2022, opinion written by California federal Judge David O. Carter, who presided over a case in which the House January 6 Committee subpoenaed the emails of law professor and Trump legal adviser John Eastman (who clearly is the above-referenced Co-Conspirator 2 in the indictment).

We can glean from this that Dan is right. The false statement is not as clean as Smith’s paragraph 30 suggests. To repeat what I related at the time:

In the aftermath of the 2020 election, then-president Trump’s lawyers filed a complaint in Fulton County, Ga., state court, claiming various categories of improper voting — e.g., 10,315 dead people, 2,560 felons, and 2,423 people not registered to vote. The state lawsuit was filed on December 4, 2020. A little over three weeks later, Trump filed an action in Georgia federal district court asking that tribunal to grant the unprecedented relief of both decertifying the results of the state’s presidential election and ordering the state legislature to appoint a new slate of presidential electors (notwithstanding that a slate of electors, certified under state law, had already cast Georgia’s electoral votes on December 14 — and that, in any event, December 8 was the federal statutory deadline for challenging state electoral votes).

According to Carter, Eastman’s emails reflect that Trump’s lawyers “discussed incorporating by reference [in the federal lawsuit] the voter fraud numbers alleged in the state petition.” On December 30, Eastman is said to have relayed “concerns . . . about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.” The next day, he elaborated:

Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has [sic] been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.

According to Carter:

President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them. President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers “are true and correct” or “believed to be true and correct” to the best of his knowledge and belief.

Now, let me preface this by saying that Trump should not have signed the verification in question. That said, he will of course say that he only signed it on the advice of counsel, who actually filed the federal pleading. The reason Carter (and hence Smith) have to rely on the fact that the inaccurate information was “incorporated by reference” is that Trump’s lawyers took pains to omit express references to the false numbers from the federal pleading when they transferred information from what earlier had been filed in the state.

Moreover, as I detailed in the column, Carter dropped a footnote in which he acknowledged that Trump’s lawyers had done some additional hedging in order to obscure Trump’s awareness that the numbers being incorporated by reference were wrong. Specifically, they asserted (in a footnote of their own) that Trump was only relying on information provided to him by his lawyers.

Now, on the one hand, this is not really a helpful fact for Trump because the information that the lawyers had provided to Trump was that his numbers were wrong. But looking at the complete package, Smith could easily have concluded that all this hedging about what Trump knew, and about the extent to which the inaccurate numbers were being relied upon, could make it hard to prove falsity beyond a reasonable doubt.

And on that point, as I explained at the time, even though the anti-Trump House January 6 committee treated Carter’s rulings as they were the functional equivalent of criminal convictions of Trump (and Eastman), they were nothing of the sort. This was a civil litigation and Trump was not even a party. At issue was a point of evidence, and Carter found only that it was more likely than not that Eastman and Trump were involved in wrongdoing (which is the standard for triggering the “crime-fraud exception” that extinguishes the attorney-client privilege). Carter did not find that Eastman — much less Trump, a non-party — was guilty beyond a reasonable doubt. (And obviously, in the civil case, Eastman did not have the array of due-process protections he would have enjoyed in a criminal case.)

As Dan ably shows, Smith’s indictment compellingly outlines a great deal of appalling behavior by Trump; but when it gets down to the brass tacks of identifying chargeable crimes, a prosecutor has to grapple with Trump’s knowledge, his intent, and the high burden of proof in criminal proceedings. That is why paragraph 30 is not charged as a separate count. It’s also a big reason why it will be hard for Smith to establish guilt on the counts that he has charged.