Thread by @KingMakerFT

Now that Special Counsel Smith’s magnum opus, election interference filing is in the public record, I can provide more detail on how the 165 page filing violated Trump’s constitutional rights under the Fifth and Sixth Amendments. In this thread I’ll focus on the hundreds of references to opinion testimony that at trial would likely be inadmissible for lack of foundation, based on what little Smith has provided to prove up the opinion testimony. Yet Smith asks the judge- and the voting public, including prospective jurors- to accept such inadmissible opinion testimony as the gospel truth. That is not how the 5th Amendment requirement of due process and the 6th Amendment right to confront and cross examine witnesses against you, and the 6th Amendment right to a jury trial before a fair and impartial jury, are designed to work.

Throughout Smith’s filing, he refers to evidence in the form of opinions by various witnesses who claim to have reported to Trump and/or people working for him or conspiring with him, that there was no fraud or illegality in the election sufficient to change the result. In very general terms, there were descriptions of witnesses telling Trump, in sum and substance, “There was no fraud.”

In legal terms, that type of testimony would be characterized as opinion testimony, since no one person could personally attest , by first hand knowledge, to the absence of fraud or illegality with respect to every vote, out of tens of millions cast, and that all such votes were lawfully counted. To be admissible, opinion testimony must be based upon an adequate foundation. The burden is on the party trying to introduce the opinion into evidence to establish a proper legal foundation for its admissibility.

A foundation would include such things as how the witness formed the opinion, what data, results of experiments, scientific observations, and other evidence were relied upon by the witness. In simple terms, the witness is required to explain in detail how and on what basis he or she came to the opinion there was no fraud. Speculation and guesswork are not evidence.

Whether there is a basis for the opinion testimony cannot be determined by the court without affording the defendant the right to object to lack of adequate foundation, including the right to test whether a foundation exists using cross examination. For example, Trump’s lawyers might try to show through cross that when Witness X told Trump there was no fraud, the only basis for the statement was hearsay the witness heard. But the witness personally conducted no review, made no objective examination of claims by others that there was fraud, and merely accepted the unsupported word of someone else.

Without a proper foundation these opinions spread throughout the brief are meaningless. And they are inadmissible at trial. They do not help prove the underlying theme of Smith’s case: Trump lost the election because there was no fraud and he knew it. That’s the type of defect that makes the right of cross examination essential to protect the due process rights of an accused.

Unfortunately, Smith seems to be more interested in affecting the election than in preserving the defendant’s constitutional rights. But that election influence object has a serious spillover effect of the jury. Jurors are voters too. Clearly Smith’s intended audience is not just the judge, but also the voting public- including prospective jurors. In simple terms. any prospective juror who reads about or watches news about the filing will inevitably hear about evidence that has not been subject to cross examination and may be inadmissible at trial. When the voting public is influenced to vote against Trump, the prospective jurors will be similarly prejudiced against Trump.