There are four counts in special counsel Jack Smith's indictment of former President Donald Trump and four fatal flaws that expose prosecutorial "abuse" by President Joe Biden's Justice Department, according to prominent Washington, D.C., lawyer David Schoen on Newsmax.
- Lack of "integrity" in an investigation and prosecution run by "political partisans."
- Prosecutors with problematic past prosecutorial "misconduct."
- A violation of legal "integrity" by offering misleading narratives and omitting exonerating facts and exculpatory evidence.
- Impossibility of proving former President Donald Trump's mens rea, legalese for criminal intent.
"You can't put political partisans or people with a history of misconduct on an investigation or prosecution of this magnitude, so that's my issue process-wise," Schoen, a constitutional law expert, told Thursday's "Wake Up America," calling it "outrageous stuff."
"So, why, if you have a prosecution of this magnitude against the president of the United States — clearly you need public support in the integrity of the process. There shouldn't be any public support in the integrity of this process."
Schoen was one of the key members of Trump's second impeachment trial defense team that exonerated him on the House Democrats' "incitement to insurrection" narrative.
"There are a lot of issues regarding the law they're trying to abuse in this case," Schoen told host Rob Finnerty. "Quite frankly, Nixon v. Fitzgerald is a very important one, historically, and it makes sense, doesn't it?
"I mean that the president of the United States must have great leeway on what he or she says and does and so forth. That's the way our Constitution provides — for, you know, the three branches of government, the executive branch, it's a very powerful branch."
Not only is the case exposed on legal "integrity" challenges, having relied on clear "political partisans," but some of those same prosecutors have credibility issues in their past prosecutorial "misconduct," starting at the top with Smith, according to Schoen.
"He's a guy who just has blinders on, it seems," Schoen said, adding "the people he chose for his team" can be exposed for "very troubling" prosecutorial "misconduct" allegations against them.
And, he added, "these are people from the so-called public and integrity section," but have proven to have anything but.
Smith's indictment story also committed the integrity violation of omission, according to Schoen, by failing to represent the president's exonerating words regarding peaceful protests and lawful challenges to the 2020 presidential election.
Fourth, and perhaps most important of all, overcoming the legal hurdle of proving Trump's mens rea, the legal term for having criminal intent, will be impossible for the government, according to Schoen.
"That's a great question and that's going to be the sort of $64-million question in this," Schoen concluded. "Each of the charges in this case requires a mens rea, a state of mind, that they shouldn't legitimately be able to prove this.
"I will tell you this — I know him very well at this point and speak to him regularly: Donald Trump, within and without, with his heart and soul, believes the 75 million or more voters who voted for him were cheated, that the election was stolen, and that there was election fraud.
"Right or wrong, that is what he believes, and he had those beliefs confirmed by the people surrounding him. He had the actions that were taken, directed by the people surrounding him, that you cannot prove a criminal mens rea, if you're legitimately presenting this case."
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