Harvard Law School professor emeritus Alan Dershowitz told Newsmax on Monday that while it’s appropriate for the Office of Special Counsel to investigate Jack Smith, proving that the former prosecutor intentionally went after President Donald Trump for political reasons is a heavy burden.
Smith and then-Attorney General Merrick Garland, who appointed Smith in November 2022, have maintained that none of the actions taken in the classified documents case and the case of alleged interference in the 2020 election against Trump were politically motivated.
The Office of Special Counsel announced Saturday it was investigating Smith for alleged violations of the Hatch Act, which prohibits certain public officials from engaging in political activity.
“Well, I think that it’s perfectly appropriate to have a grand jury investigate whether or not there was a conspiracy, but I would think that you would have to have pretty hard evidence that there was the intent to use the legal system in a way that’s improper,” Dershowitz told “The Record With Greta Van Susteren.”
“The same thing is true with the Jack Smith issue. The issue that is going to be presented, and it’s an issue that’s never been presented before, is whether or not it is political and therefore a violation of the Hatch Act, violations of other standards, if a prosecutor weaponizes the criminal justice system and engages in lawfare.”
Dershowitz said he has long been an opponent of lawfare and believes New York Attorney General Letitia James and Manhattan District Attorney Alvin Bragg — both Democrats — used lawfare to prosecute Trump.
“So, there are two questions,” Dershowitz said. “No. 1, did Smith do the same thing? And No. 2, is there a basis for going after somebody who is no longer in office under the special prosecutor in the Hatch Act and all of that?
“And what would the remedy be if they found out that it was a violation of the Hatch Act, since he’s no longer a government employee? So, these are tough, difficult issues, but they’re issues that have to be confronted.”
Dershowitz agreed that a way of proving intent is to subpoena all the email and text messages of the parties involved.
“The other way of finding intent is if you have some lower-level people who are in the office who would be prepared to testify that Smith said so-and-so and gave his motive,” Dershowitz said.
“Now, again, in the cases in New York, there’s no problem of showing intent. They bragged about it. They ran on the ground that they wanted to weaponize the legal and criminal system in order to gain political advantage for their side. So, it’s very easy in New York … but it’s a state case.
“I would think there would be a way of getting federal jurisdiction over state actors when they abuse the Constitution in the way that Bragg and James did abuse the Constitution. I would think some creative lawyering. I’m not talking about criminal prosecution, because I don’t like that. But creative lawyers might find a way of finding some civil accountability for the misuse of the legal system in so political a way.”
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