The Indictment of Former President Trump Is An Abuse of Prosecutorial Power For Political Purposes – The Motive Is Clear on Its Face

By ShipWrecked:

The purpose of an indictment is to provide notice to the defendant of the nature and circumstances of the charges. The content of an indictment is 100% the result of decisions made by the prosecutor. The document is drafted by the prosecutor and presented to the grand jury. The grand jury does not itself make changes to the language or allegations in the indictment.

The legal requirement with regard to the content of an indictment is that there be sufficient specificity that the defendant is advised of the time, place, and details of the charges so as to allow a defendant to claim “double jeopardy” in circumstances where the subject of the prosecution has been previously adjudicated against him.

Beyond that, federal courts at all levels have held that the charging language in an indictment combined with the detailed information and evidence provided to he defendant and his counsel in discovery, satisfies the “notice” required by due process.

What is absolutely certain is that the content of any indictment is not a reflection of any “right” of the public to see a litany of detailed ALLEGATIONS that form the basis for the charges, especially where those allegations are not presented in the context of the ACTUAL EVIDENCE that may — or may not — support the claims alleged.

What the Department of Justice has done more and more often in the past 20 years — particularly since the dawn of internet era — is to use what are called “speaking indictments” to manufacture a public narrative concerning the alleged conduct of the defendant. The more high profile the case, the more effort DOJ puts into crafting an extensive narrative for public consumption. With the allegations set forth in a public record, Department of Justice officials can discuss them in the press without violating DOJ policy.

Because the allegations will be published far and wide long before they are subject to the crucible of the adversarial system of justice, the narrative takes hold in the public consciousness as “fact” and often becomes impervious to contrary evidence.

Before turning to the Trump indictment, let me provide you a real world example that I was just involved in over the past few months.

In the Oath Keeper indictment charging Stewart Rhodes and others with “seditious conspiracy,” the allegations of tat indictment made repeated references to the “Rhodes Plan” to attack the Capitol building on January 6.

But over the course of two trials, spanning nearly 4 months and involving the testimony of more than 60 witnesses, not a single witness testified that they knew about, heard about, or that there even existed a “Rhodes Plan” to attack the Capitol.

In closing arguments the Government prosecutors even had to resort to arguing that the existence of a “Rhodes Plan” could be “inferred” by the actions of the defendants. They argued that the “Rhodes Plan” that they so explicitly referenced over and over again in the indictment could have been “implicit” — nothing that was ever mentioned or actually discussed by any of the defendants.

But the narrative in the press and public consciousness created by the language of the indictment as drafted by the DOJ prosecutors took hold as “fact” when the only place such a “fact” existed was in the mind of those prosecutors while sitting at their computers and typing in the words.

Additionally, the indictment referred over and over to an armed “QRF” — a “quick reaction force” — staged in Arlington, Virginia, armed and standing by in case they were needed to come into D.C. to assist in attacking and/or holding the Capitol to prevent the Congressional certification of the 2020 election.

But “QRF” is a military term, and every witness with a military background that described about a “QRF” called it a force standing-by to assist another military ground unit that encounters unexpected trouble and is in need of being rescued from a difficult or precarious situation.

In military terminology, the prosecutors’ repeated references and descriptions of the QRF was inaccurate, and not what the ex-military members of the Oath Keepers were discussing. What the prosecutors were calling a “QRF” would actually have been called an “Assault Team” in the military. If the Oath Keepers were staging a team in Virginia to attack and hold the Capitol, they would have called it an “assault team” not a “QRF”.

But it didn’t matter when the indictment was written and filed by DOJ. Accuracy took a backseat to the narrative claim by the government that an armed group of men were waiting in Virginia to cross the Potomac and use force of arms to attack the Capitol building on January 6. This was reported in the media as a “fact” because the prosecutors said it was a “fact” in the allegations of their speaking indictment.

Now we have the Trump indictment.

Beyond the fact that the Special Counsel took 49 pages to describe facts that could be summarized in a one or two paragraphs — thereby injecting into the public discourse (i.e., Special Counsel Jack Smith fed the “beast” that is mainstream media and social media) a narrative of unnecessary allegations about which at this point he does not need to disclose his evidence — he also did so in a charging fashion that is gratuitous and intended only to inflame public passions over the disputed documents.

When a federal prosecutor charges a conspiracy or a scheme to defraud, one of the charging requirements is to allege one or more “overt acts” with regard to a conspiracy, or one or more “executions” of the scheme by the use of fraudulent conduct.

For purposes of the indictment, one such “overt act” or “execution” is all that is needed to satisfy due process with regard to “notice.” The full scope of the conspiracy, or nature of the overall scheme is provided to the defendant and his counsel through discovery — production of evidence outside of the public’s that the government will rely upon at trial.

Evidence at trial of the conspiracy or the scheme is not limited to the specific acts alleged in the indictment. All relevant evidence that tends to show the existence of the conspiracy or scheme is admissible.

Sometimes the overt acts are themselves illegal and will be the basis for separately charged substantive crimes. For example, multiple sales of illegal drugs can be charged both was “overt acts” of a drug trafficking conspiracy, as well as individual counts of illegal drug distribution.

Read more