In search of a crime to get Donald Trump

In her ill-advised interview with the New York Times and other media, the Georgia grand jury foreperson Emily Kohrs broadly hinted that the advisory grand jury may well recommend indicting Donald Trump. The implication is that his recorded telephone call in which he asks the Georgia Secretary of State Brad Raffensperger to “find” the votes necessary to turn the Georgia election around was a crime.

But the words themselves are highly ambiguous. In this context, “find” can either mean “discover” or “invent.” The dictionary definition of find, comes closer to the former than the latter, but even for those who believe that Trump meant the latter, his recorded statement, standing alone, is woefully insufficient for a criminal indictment.

Under traditional notions of criminal law, doubts must be resolved in favor of the defendant. This grows out of the ancient principle of “lenity.” It also grows out of the classic notion that guilt must be proved beyond a reasonable doubt and that it is better for 10 guilty to go free then for one innocent to be wrongly convicted.

It is possible of course that there is external evidence to support the allegation that Trump intended to tell Raffensperger to make up the missing votes, whether they existed or not. But no such evidence has been produced. If the alleged crime is, in fact, based on no more than speculation about Trump’s intended meaning, said speculation cannot be the basis for a criminal charge.

As members of the public and voters, we are entitled to infer the worst possible motive on behalf of the former president. But judges and jurors are prohibited from speculating when a defendant is standing trial for a serious crime. All reasonable doubts must be resolved in his or her favor.

The very concept of an advisory grand jury that hears one sided, ex parte evidence from the prosecution, and then selectively discloses its content is anathema to American criminal justice. Grand juries were designed to protect the rights of criminal defendants, not to give prosecutors a one-sided advantage in getting their story out and thus prejudicing potential jury pools.

In general, grand jury deliberations are secret, precisely because of the recognition of their one-sided nature. Their only legitimate job is to determine whether the prosecutor has presented sufficient evidence to warrant the case going forward to a full-blown public trial. Georgia’s procedure is an anomaly, and an unfair one at that. It is even worse than the one-sided Jan. 6 committee, which heard most of the evidence in public and at least gave citizens the opportunity to appraise its credibility. Not so with the Georgia grand jury which operated in secret until the foreperson selectively disclosed her assessment and predictions.

This is not justice under the American rule of law. It has been said that cross-examination is the greatest engine to determine truth devised by humans. Its origin dates back to the book of Daniel and it has been part of Anglo-American history since Magna Carta. In the absence of an opportunity to confront and cross examine adverse witnesses, no one should give any weight to a grand jury’s recommendations. Judges routinely instruct jurors to give no weight to grand jury indictments. This instruction is even more relevant to grand jury recommendations selectively disclosed by a rogue foreperson in an interview with a biased newspaper, which failed to place her statements in their proper legal context.

The selective disclosure coupled with the uncritical reporting on it by some media can best be understood against the background of the “get Trump” movement designed to prevent the former president from running to regain the presidency. If he were not running, it would be unlikely that all these extraordinary and extralegal steps would be undertaken.

My forthcoming book “Get Trump” documents this dangerous development — dangerous to civil liberties and the equal application of the law. No one should ever be targeted for special treatment by the criminal justice system. It is un-American to target the person and then search for any possible crimes. That is what is being done with regard to Trump.

So let’s not jump to conclusions based on one person’s predictions or wishful thinking. A prosecutor, sworn to uphold the law, must decide on the basis of all the available evidence whether to seek an indictment. In the case of a future presidential candidate, he should be relatively certain that the evidence, when subject to adversarial testing, will result in a conviction. An ill-advised indictment followed by an acquittal would only exacerbate the partisan fusions that plague our nation and further politicize our legal system.

Dershowitz, Felix Frankfurter Professor of Law, emeritus, is host of the DerShow on Rumble and is the author most recently of “The Price of Principle: Why Integrity Is Worth the Cost.”