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Alan Dershowitz pushes back on Bill Barr’s defense of Trump’s indictment: ‘He’s dead wrong’


Alan Dershowitz, professor emeritus of law at Harvard, has warned that former attorney general Bill Barr was “completely wrong” in his assessment of Trump’s latest indictment, arguing that prosecutors will have to prove that the former president knew and believed he lost the 2020 presidential election to win. Dershowitz joined “The Brian Kilmeade Show” on Thursday to discuss his previous legal predictions and why the Justice Department may face an uphill battle to prove Trump’s alleged guilt in relation to the Jan. 6 charges.


ALAN DERSHOWTZ: I predicted the four indictments. And I also predicted that Hunter Biden’s plea bargain would not be accepted. The reason my predictions are correct and CNN’s are always wrong is that they are always wishful thinking. And mine is just based on my experience. I have no horse in the race. I’m just trying to predict based on 60 years of work. But the main point of principle that I really want to overcome is that, and this goes for both parties, the lead candidate against the incumbent president should never be prosecuted by the president’s attorney general, of course, unless the he case against him is overwhelming and beyond dispute. The Nixon standard is what I call it, it’s so overwhelming that both sides support it. This does not occur in this third indictment. That won’t happen in the fourth indictment. That didn’t happen in New York’s first indictment. It may have happened in the Florida indictment with this piece of evidence of the president foolishly waiving a classified document in front of a writer and the editor and saying, “I could have declassified this when I was president, but I didn’t ‘t.’ But the crime there is not particularly serious. This is technical crime on paper. So I just don’t think they have enough against this candidate who is now running 44 to 44 in the New York Times poll for using the criminal justice system to interfere with the election.

Bill Barr, Trump’s attorney general from 2019 to 2020, told Fox News Digital, “I don’t support Trump for the GOP nomination and I won’t support him.” (Michael Reynolds-Pool)

I like Bill Barr. He’s a good man, but I think he’s just plain wrong about it. Of course, this is a case of free speech. It all involves his exercise of free speech and not just the First Amendment freedom of speech, but also the First Amendment right to ask the government to redress grievances. The way you protest an election is to come up with an alternative list of voters. It was done in 1960. It was the election of Tilden Hayes. This has happened throughout history. And a court in Hawaii said that was the right way to go. You know, it’s interesting that the indictment is based on lies, and the indictment itself contains a blatant lie by Jack Smith. He describes the speech of January 6, a speech that I find terrible, which should never have been given. But he describes the speech in the indictment and deliberately and willfully omits key words from the speech, which are that the president told his people to demonstrate peacefully and patriotically by omitting those words. It is a lie by omission.

Former President Donald Trump and Special Counsel Jack Smith (Getty Images)

And by the standards set out in the indictment, you know, Jack Smith could be charged. He could also be charged. Theoretically this will not happen, of course, under the Ku Klux Klan statute which says that anyone who conspires to deprive someone of their constitutional rights is guilty of a crime. What if the Supreme Court ultimately decides, as opposed to what Barr said, that everything Trump has done and said is protected by the First Amendment? That would mean that Jack Smith attempted to strip Trump of his constitutional rights in this indictment. I make this point not to argue that Smith should be indicted. To argue that the indictment is so broad, so broad, so encompassing, it could include so much political conduct. You know, we have two presidents in our history, all of our presidents. Only two were called Honest, Honest Abe and Washington and the Cherry. Does this mean that all the other presidents have been dishonest? Probably. Probably every one of them is being lied to to get elected or stay in power, and we don’t punish. We do not criminalize. You pervert the lies, and the government is going to have to prove beyond a reasonable doubt that Trump himself knew and believed he lost the election. I don’t think anyone who knows Trump thinks that’s true. Trump has convinced himself that he has won the election, and if so, then there is no motive or intent for corruption.


FILE – In this Jan. 6, 2021, file photo with the White House in the background, President Donald Trump speaks at a rally in Washington. (AP Photo/Jacquelyn Martin, File)

Former President Donald Trump is scheduled to appear in federal court in Washington, D.C., on Thursday afternoon after being indicted on charges stemming from Special Counsel Jack Smith’s investigation into 2020 election interference and the Jan. 6 Capitol riot 2021.

Trump, the 2024 GOP frontrunner, faces four federal charges, including conspiracy to defraud the United States, conspiracy to obstruct an official process, obstruction and attempted obstruction of a process official and conspiracy against rights.

The former president is expected to travel from Bedminster, New Jersey, to Washington, DC on Thursday. He was ordered to appear in federal court for arraignment at 4 p.m.

It’s the second federal indictment the former president faces Smith’s investigation. Trump, who leads the 2024 GOP presidential primary field, has already pleaded not guilty to 37 counts related to his alleged improper keeping of classified records from his presidency.

These charges include willful withholding of national defense information, conspiracy to obstruct justice, and misrepresentation. Trump was charged with three additional counts in a superseding indictment from that investigation last week.

Trump is the first former president in US history to face federal criminal charges.

Fox News’ Brooke Singman contributed to this report.

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