One charge, conspiracy against rights, was originally intended to blunt the KKK in 1870
Gregg Jarrett: Jack Smith should be 'indicted for stupidity'
Fox News legal analyst Gregg Jarrett deconstructs special counsel Jack Smith's indictment of Trump on 'Hannity.'
Special Counsel Jack Smith, who brought four new 2020-election-related charges against former President Donald Trump earlier Tuesday, should be "indicted for stupidity" according to one legal analyst.
Gregg Jarrett told Fox News that the 45-page indictment of Trump, in which Smith lays out charges including one count better known for being used against the Ku Klux Klan in the 1870s, is an "amateurish joke."
Trump was charged with conspiracy to defraud the United States, attempt to obstruct an official proceeding, conspiracy to obstruct an official proceeding and conspiracy against rights – the latter of which was drafted to counteract intimidation of recently freed slaves newly protected by the 14th and 15th Amendments.
"This indictment strikes me as an amateurish joke, frankly," Jarrett said. "Jack Smith as special counsel should be indicted for stupidity – It's that bad."
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Special Counsel Jack Smith has promised a speedy trial for former President Donald Trump and noted defendants are presumed innocent. (Fox News screenshot/AP Photo)
Jarrett told "Hannity" that Smith has a "disreputable habit" of charging "politically driven prosecutions."
On Sunday, former Virginia Gov. Robert McDonnell told Fox News he was one defendant in such a case, where Smith – then leading the Justice Department's public integrity section – prosecuted him for corruption only to see the Supreme Court unanimously vacate the conviction.
Jarrett further alleged smith "contort[s] law and mangle[s] evidence," calling the four charges against Trump a "stretch."
"It's a Gumby indictment," he said, referencing the once-popular claymation character of the mid-20th Century.
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Jarrett argued Trump was legally permitted to challenge election results under the Electoral Count Act of 1887, a move which Smith appeared to criminalize in his indictment.
The act followed a notably contentious election between Republican President Rutherford Hayes and then-New York Democratic Gov. Samuel Tilden.
Prof. Alan Dershowitz further alluded to elector slate disparities coming into play again in 1960, when then-Republican majority Hawaii was ultimately won by Republican presidential candidate Richard Nixon by a paper-thin 0.06%.
Jarrett said Democrats challenged presidential elections in 2016 and prior under the act:
"The main point is if Donald Trump truly believed he won, even if he was wrong about it and he used the legal process to contest the outcome as the law clearly permits, that is not election fraud," he said, adding that Hillary Clinton notably alleged substantive interference in 2016.
Dershowitz responded to claims Trump cannot get a fair jury trial in the District of Columbia, as the assigned jurist – Judge Tanya Sue Chutkan – is an Obama appointee who has prosecuted January 6 defendants, and that essentially 92% of the jury pool voted for President Biden in 2022.
Dershowitz said Trump's team's first court motion is likely to be a change-of-venue to a neighboring federal district – pointing to the Eastern District of Virginia as an example.
Host Sean Hannity noted that much of the district is still anti-Trump, particularly in Alexandria, Arlington, Fairfax, Norfolk and Richmond.
But, Dershowitz noted the jury pool there could be more balanced than in Washington. While many of the jurisdiction's cities are heavily Democratic, it also includes the state's Republican-leaning Northern Neck and Eastern Shore – as well as red counties like Goochland and Powhatan, west of the state capital.
Dershowitz added that Smith's indictment acknowledges there is the freedom of speech protection redress of grievances and challenging elections, but that the illegal act alleged is that Trump supposedly knew Biden won and instead conspired with yet-undisclosed individuals to overturn the election.
He pointed to the Hawaii case as one where challenges to elections were deemed legal, and that it leaves Smith with the requirement of proving Trump's knowledge and intent in regard to 2020.
"There is no smoking gun. There is no one who is credibly prepared to testify that Donald Trump said to them, ‘I know personally I lost the election’. – There's a lot of evidence that people told him we lost the election. But, you know, Donald Trump and you know that he's going to make up his own mind and they're going to have a very hard time proving that."
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Charles Creitz is a reporter for Fox News Digital.
He joined Fox News in 2013 as a writer and production assistant.
Charles covers media, politics and culture for Fox News Digital.
Charles is a Pennsylvania native and graduated from Temple University with a B.A. in Broadcast Journalism. Story tips can be sent to
