Trump indictment won't fulfill Democrats' ineligibility bedtime story, Smith 'stretched law': Legal experts

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Public will see Jack Smith's latest move as 'indictments continue til polls change': Jonathan Turley

George Washington University law professor Jonathan Turley analyzes latest Trump indictments on 'The Five.'

Former President Donald Trump's latest four-count indictment relating to the 2020 election's aftermath will not come close to fulfilling Democrats' dreams of prohibiting the Republican front-runner from attaining high office again, a top law professor told Fox News.

George Washington University Law Professor Jonathan Turley's analysis was essentially seconded by another legal expert, former New York federal prosecutor Andy McCarthy, who noted he had himself successfully prosecuted a "seditious conspiracy" case and said the Trump investigation gets nowhere close to that threshold.

Fox News correspondent David Spunt reported on "The Five" that Trump had been indicted on four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an attempt to obstruct an official proceeding, and conspiracy against rights.

Turley told "The Five" that special counsel Jack Smith might be "yielding to his weakness" with the indictment.

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Special counsel Jack Smith has promised a speedy trial for former President Donald Trump and noted defendants are presumed innocent. ((Photo by JERRY LAMPEN/POOL/AFP via Getty Images))

"[Smith] may be stretching the law a bit, so that's why we're going to be looking at things like witness tampering to see how much new evidence he has," Turley said. "You'll notice that not being discussed in all of this is a conspiracy for incitement [or] seditious conspiracy."

He noted those two claims were paramount in Rep. Adam Schiff's, D-Calif., second impeachment proceedings against Trump.

"Those were the claims that Democrats said were lead pipe cinches, where the evidence was absolutely clear," he said. "They do not appear thus far to be in this indictment, but we'll have to see."

"Jack Smith has a reputation for stretching criminal statutes beyond the breaking point. He went after [former Virginia Republican Gov. Bob McDonnell] and secured a conviction there. He was unanimously overturned because he just stretched the law too far."

Democrats and Trump critics have long accused the former president of urging supporters to forcibly overturn the election by storming the Capitol. Trump has repeatedly emphasized he urged supporters who marched to "peacefully" demonstrate on Capitol Hill.

Host Jesse Watters told Turley that Smith's indictment "reads like a transcript of an MSNBC show" and expressed incredulity that it appears to relitigate claims of election fraud in 2020 in Pennsylvania, Arizona, Nevada and Michigan.

Watters quipped that Democrats might not want to go back down the road of defending the "integrity" of the election system in Philadelphia.

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Turley previously said Democrats are unlikely to see their dream of Trump being declared ineligible for elected office come true with the latest indictment.

"The Democrats have been playing with this for years with the 14th Amendment and the claims of disqualification," he said. "It's sort of a story you tell your kids at night if you're a Democratic household so they sleep restfully, but I got to tell you, I'm highly skeptical."

"I don't think that a conviction would prevent Donald Trump from running, and by the way, if he's elected, it wouldn't prevent him from pardoning himself. It wouldn't prevent other Republicans elected from pardoning him."

On "Special Report," Turley was joined by McCarthy, who reacted to details from the indictment showing descriptions of phone calls between Trump and then-Vice President Mike Pence regarding the election.

Trump has repeatedly claimed Pence had the authority to send the elector slates back to the state legislatures under the Electoral Count Act of 1887.

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McCarthy referenced how some Trump acolytes pressed him on the theory, which could be connected to the conspiracy count in the indictment, but suggested that no matter how "frivolous," such machinations are likely protected speech.

"I think it's even beyond that. I think there you get into this whole idea of criminalizing a frivolous legal theory," McCarthy said, naming Trump-friendly attorney John Eastman, who forwarded the electoral slate theory.

Eastman reportedly pressed for certain states to appoint "alternate" elector slates that would help resolve disputed slates presented to Pence as president of the Senate at the time of the January 6 tally. 

"Eastman's theory may have been a bad one. I think it was a bad one, but it was something that he was allowed to rely on," McCarthy said.

"And generally speaking, in this country, what we do with frivolous legal theories is we figure that the jury system will take care of it or the political system will. We don't criminalize them. And that's what this indictment attempts to do."

McCarthy also said that connecting Trump to incitement, as Smith reportedly does, would be "low rent stuff that prosecutors are not supposed to do."

"If you've got evidence that Trump committed incitement, then charge him with incitement. But, of course, I can say as somebody who actually successfully prosecuted a seditious conspiracy case, they don't have a prayer of a case like that… "

"There's a section [in the indictment] that's called ‘exploiting the violence of January 6’ — I forget exactly how it's articulated, but he talks about exploiting it because he can accuse him of actually aiding and abetting it or committing it in any actionable way."

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