Special Counsel Jack Smith’s recent move against former President Donald Trump may be dead in the water due to one crucial factor.

Jack Smith secured a superseding indictment against the former president in connection to the election interference case. The previous indictment was heading for the rocks after the Supreme Court ruled that Trump’s official actions in his capacity as president are immune from prosecution. 

Smith’s new indictment charged the former president with the same accusations as the previous charges but excluded his official actions as president. However, the special counsel’s latest maneuver may not save his case, according to  Noted attorney Alan Dershowitz.

Dershowitz insisted on Wednesday that Smith would have an “uphill fight” to prove Trump knew he had lost the election to President Joe Biden. 

“The indictment charges that Donald Trump knew, knew and believed that he had actually lost the election. How’s the government gonna prove that?” Dershowitz asked. “He never said that to anybody. He never wrote that anywhere. Did he ever think it? I don’t know. Did he say it on a phone call that was illegally overheard? I doubt it.”

The law professor noted that Trump lost the election to Biden “fair and square” but added that the former president did not commit any crime by believing and saying he won.

“I think he lost Georgia, I think he lost Arizona and I think he lost enough states so that Joe Biden was officially and correctly elected president of the United States,” Dershowitz added. “It’s not a crime to disbelieve that, in fact, the indictment says that it’s not a crime to speak about that and to oppose it, but if he believed it, if he honestly believed it, if he talked himself into it, even if he was wrong if he believed it if he thought he had won the election, then everything he’s accused of doing is protected by the First Amendment, Article Two of the Constitution and the Twelfth Amendment.”

Dershowitz, however, noted that Smith could still secure a conviction against the former president, given the trial’s location. 

“Now they will win it, it’s not uphill in the District of Columbia. They could have indicted him, for you know, eating a salami sandwich and a jury in the District of Columbia will convict,” the law professor said. “We’ll wait and see what the instructions are, whether the instructions require the jury to find beyond a reasonable doubt based on evidence not based on surmise but based on hard evidence that Donald Trump actually knew and believed that he had lost the election and he just was lying.”