I can hardly generate the enthusiasm to cover this subject yet again. The Times and the Post had pages of news, analysis, and opinion. The main televised media interrupted coverage for breathless panels (are there any other kind these days?) which compared the event to 9/11, Watergate and the Moon Landing (not the last one, but almost). That says more about them than about the indictment, but it is important, so here goes.
Jack Smith, Special Counsel in the Department of Justice (DOJ), has indicted former-President Trump on four counts, namely
- Conspiracy to defraud the US by denying the outcome of the 2020 election
- Conspiracy to obstruct an official proceeding, namely, that certification
- Obstruction of that same official proceeding, and finally
- Conspiracy to violate the people’s civil rights to vote and have their vote count.
First off, let’s dispense with the obvious partisan talking points.
Those on the right who suggest these indictments criminalize political speech are wrong. The former President and his MAGA supporters can stand on any corner and proclaim the 2020 election was stolen all day. They still can. What is in question are actions taken by then-President Trump and his co-conspirators. Those actions may (or may not) be deemed crimes. A simple analogy. You can claim that my car is yours. You can write about it, speechify about it, send me an e-mail, all protected by the First Amendment. But if you get in that car in question and drive away in it, I will charge you with theft and the matter will be resolved in court. Actions, not words.
Some on the left continue to insist that Mr. Smith should have charged Mr. Trump with insurrection and seditious conspiracy. The first was one of the charges referred to the DOJ by the January 6th committee. They over-reached there, as Jack Smith’s refusal to pursue it shows. The second charge is one that has been successfully used against groups like the Proud Boys, but those cases are moving up the appeals process, and higher courts are looking closely at them. The prosecutors got convictions at trial, but whether the charges themselves will hold up to higher court scrutiny remains to be seen. Smith smartly avoided the possibility.
Anybody who saw (even on tape) the January 6th riot, and heard Trump’s railing about the election, should have few doubts about the facts of the cases. There is only one real challenge within those facts. All the charges rest in some manner on conspiracy, and that charge requires the suspect’s knowledge that what he was doing was wrong. Not that he was in fact wrong, or even that others told him he was wrong, but that he knew he was wrong and proceeded anyway.
That is the main challenge facing Jack Smith in court. Now the indictments simply allege that Mr. Smith has the evidence to confirm this point, they don’t show the evidence, so we don’t know. Some of the forty-five pages allude to times when others told Trump he was wrong about the election, or when he made comments which suggest he knew he was wrong. That will be stacked up against the noise coming from the same man, loudly and continuously, for the past almost three years. We shall see. I don’t envy the court and the jury being invited into the squirrel’s nest that is Donald Trump’s mind.
There are some other, specific challenges hidden in the indictment. For example, fraud requires a tangible gain (monetary or otherwise), and so Mr. Smith must postulate what that was. The White House (which the President only “rents”)? Presidential pay (which Mr. Trump donated)? Denial of civil rights requires proving a specific intent to do so, as in the suspect saying, “I am going to cheat those Georgians of their right-to-vote,” so that’s a high bar. Finally, corruption, which gets several mentions in the indictment, must also be specific, and in related case, a unanimous Supreme Court threw out a “boundless” definition of corruption and the resulting conviction of Virginia Governor Bob McDonnell, calling it the criminalization of horse-trading of politics.
As you should now see, the basic case before the jury is strong. The appellate issues are huge. So we might see a short trial and conviction followed by a lengthy and contentious appeal all the way to the Supreme Court. So I ask the question: is it worth it?
Just as no president ever tried to reverse his defeat at the ballot box before, no prosecutor has brought charges for doing so, meaning there is no precedent for applying the statutes on the books to such a circumstance.
Peter Baker, NYT correspondent
Besides punishing the former President, what is at stake here? All those appeals will result in precedents. If a Trump conviction is overturned by the Supreme Court, Democrats will attack the legitimcy of the court, guaranteed. If it’s upheld, MAGAists will call the entire justice system corrupt.
Since 1973, the DOJ of all Republican and Democratic Presidents has held that a sitting President cannot be charged with federal crimes, as that would interfere with his constitutional duties. Trump was President when he committed the actions Jack Smith has charged against him. So now we have a precedent that while sitting, the President is immune, but the day he leaves office, we can go back and charge him for action undertaken while in office. Furthermore, the courts have held that the proper legal way to hold a President to account is impeachment. Trump was impeached by the House (equivalent to an indictment), but was not found guilty by the Senate for the same activities. While this is not a literal case of double jeopardy, it does raise obvious questions of equity.
What are the most likely outcomes of this trial? It won’t be short. The outcomes must be arrayed against the outcomes of the simultaneous election. The charges will still be in play, perhaps under appeal, in January, 2025 when the winner of the Presidential race is sworn in.
Conviction will not result in disqualifying Trump from office, despite the ravings of some. A Trump victory would force the DOJ to drop the charges consistent with their longstanding policy, which would leave the matter unresolved in Democrats’ minds. If they didn’t, MAGAists would revolt, and returning President Trump could move to pardon himself, generating another terrible precedent (and probably more legal wrangling, or even impeachment, depending on who has control of the House and Senate). If Trump loses the election, there is the chance he wins in the courts in the end, remaining the wounded martyr to his legion of fans (Trump 2028, anyone?). Even from prison. Democrats would cheer these outcomes up until the next Republican administration appoints special counsels for any and all living, Democratic, former Presidents. Think they won’t?
Should Congress have impeached Trump on interference in the election certification, just that, and not on incitement to violence and insurrection? Yes. We’ll never know whether more limited charges, with the intent to prevent another Trump candidacy (an outcome allowed under the constitution) would have attracted a few more Republican Senators.
Should we enact new laws against the types of behavior Trump and his co-conspirators exhibited? I welcome the debate, but Congress and the President have avoided it up to now, because it is so fraught with peril to the political process. Should we stretch existing law to cover such cases? Probably not, as the Supreme Court will rule if they get the chance.
Finally, the ultimate lesson, one we have failed to learn. Should we continue to change everything we do (our customs, our manners, our precedents, even our laws) because of Donald J. Trump? No. He is the great white whale of many in the liberal establishment, and in pursuing him, we give him too much credit, and undermine the very system some claim to want to protect. Perhaps those who say we cannot allow Trump’s behavior to stand should recall the fate of Captain Ahab.
Some thoughts:
The charge, for which Trump was impeached, is the charge that Jack Smith is passing on. The impeachment was for his actions that were believed directly leading to the mob’s seizure and desecration of the Capitol; likely chargeable for inciting insurrection, sedition, and obstructing functions of government. I don’t know if Smith is worried about a perception of double jeopardy with Impeachment #2, but he is effectively avoiding it.
Which raises my second thought; the House may have jumped the gun on impeaching. They knew the process wouldn’t culminate before Trump left office. Moreover, the idea that the Constitution doesn’t support impeaching a president who has left office doesn’t pass muster. So, why not get as many facts in play as possible, which happened with the January 6 Committee.
Justice, like revenge, is best served cold.
Last point; I believe Trump’s election is the result of an unserious attitude toward our national politics. I can’t imagine a viable Trump candidacy after August, 2015 in a country that took its politics seriously. I can only attribute it to the ending of the cold war and the thought that 98% of Americans paid no greater price for the War on Terror than the price of a yellow ribbon sticker and having to take their shoes off at the airport. Combine that with seeing the architects of the 2008 crash throw a (successful) hissy fit over not getting their (government secured) bonuses for driving their companies into a ditch.
I read an opinion this week–I think in Bulwark–that the media has been following major events as if they were still following OJ Simpson’s white Bronco; its all about the spectacle. Breathless coverage, as you note, of election “horseraces” and what would Trump do or say at his next rally all contributed to bringing us closer to the prophesy of the movie Idiocracy.
I hope that 2020 and 2022 were harbingers of us taking our politics more seriously, not because Democrats won or didnt do as badly as predicted, respectively, but because the winners take governing more seriously on balance. Its a glimmer.
Great thoughts, Denis. I agree about Smith avoiding the insurrection. As to double-jeopardy, I was making more of a philosophical point. It’s all about January 6th, one way or another. I don’t think that will hold up in the criminal system, but if it were to get to SCOTUS, they might comment to that effect. Very interesting idea about the rushed nature of the second impeachment. Never occurred to me they could have taken their time, even let the gravity of the violence sink in. That was a big missed opportunity. But I think it confirms my other hypothesis, that with respect to Trump, all reactions must be immediate, vigorous, or even over-the-top, “because Trump!” As to seriousness, it’s an interesting observation. I tend to think the Trump partisans (eventually MAGAs) were very serious. They simply had enough of condescension from the meritocratic elite, both Republican and Democrat. They had legitimate grievances, but they chose to invest their hopes in a charlatan, although one that delivers at times and places (ie, Dobbs). And for them, the reaction by the meritocracy confirmed their crush on Trump; as long as the others hate him, they will love him. I have several MAGA friends, and most of them freely admit he’s crude, not disciplined, and barely qualified. They see in him the perfect response to the meritocracy.
I commend to your reading, Denis and Pat, David Brooks’ NYT opinion piece (not a source I’d normally cite)–
“Are We the Wrong Ones?” Finally, a lib understands Trump’s popularity. The elitism to which Brooks refers is on the right + left and deeply ensconced in senior levels of federal government institutions, which is why I laugh when people say Trump appointed all these officials who now are turning on him. Yes, he did–who else was there? And these and all the other Republicans (and Democrats) serving in high government positions learned early not to rock the status quo.
Trump was not a charlatan but a revolutionary who wanted (wants) to challenge what is to bring about something better.
So far as dismissing conservative views that Smith’s indictment tramples the First Amendment, I also would commend Alan Dershowitz’s interview to you, Pat (a leftie source that normally is not in my reading repertoire): https://www.foxnews.com/media/alan-dershowitz-pushes-back-bill-barr-defense-trump-indictment-dead-wrong
I find this very compelling and agree with Dershowitz that this, largely, is a free speech case. Moreover Smith would find it very hard to indict Trump on inciting the 6 Jan riot when it has been published widely (but ignored more widely) that Trump said to approach the Capitol peacefully and patriotically.
Finally, anyone that does not find disturbing the two tier justice system that is prosecuting Trump and ignoring Joe Biden really needs to check their “confirmation bias” at the door. Is there a “smoking gun” directly linking Joe? Not yet, but all the evidence mustered to date points to “the big guy” or Joe being the center of influence-peddling, the Justice Dept and FBI covering for him, and Hunter’s deal — that would have prevented him (and, thus, his father) from being further investigated.
So, would I like to see a smoother version of Trump take the election–yes! But if the choice is Trump v Biden, Harris, or Newsome, there is no choice! It’s Trump!
Replying bottom-to-top, Denis is one among many who can confirm that I continually ask the following question of my Democratic/liberal friends: Are you at all bothered by the fact that Joe Biden’s son, brother, daughter-in-law, and some grandchildren received upwards of $20M USD from various Chinese, Russian, Ukrainian and Romanian businessmen? For what purpose? I admit there is no evidence yet of direct involvement by the President, but the lack of curiosity is astounding!
Smith cedes Dershowitz’s contention in his press release. If Trump had only talked and tweeted, there would be no case. It is for his actions supporting his contention that he is charged (but whether he is guilty or not has not been tried, remember).
I read and enjoyed Brooks piece when it first came out a few days ago. He tries hard (sometimes) to review his biases, as the article shows. I always say that the grievances of Trump supporters are real, and while a (small, imo) minority of them are racists or sexists or xenophobes, the vast majority are not. Polling data has shown critical numbers in critical states were former Obama voters who switched to Trump! Where I disagree is whether Trump was a solution, or the federal bureaucracy was a problem. Take for example the “Muslim ban.” When Trump announced it as a candidate, it was his typical off-the-cuff comment, with a racist flavor. When he won the election, the federal national security bureaucracy went to work, establishing a legitimate reason for the ban including the countries Trump named and others. The case was compelling enough to convince the Supreme Court. The feds generally work to the President’s desires, but they constrain his actions. Any President is constrained by laws, as well as by competence. Trump disregarded the former, and was a victim of the latter. In many cases, he simply did not know how to get agencies to work for him: he didn’t have appointees, he tried to ignore missions and functions, he simply wanted to ‘say stuff and watch people do it’ like it was The Apprentice. Plenty of solid leaders went to work for him, only to quit in disgust. Trump represents the ultimate in victim-hood (see Brooks latest piece), constantly claiming people are out to get him. In the end, all he needed to do to win was stop acting like a jerk on Twitter for six months. And he couldn’t even do that.
Not to belabor; rather, to clarify:
First, I recognize you challenge the views of Dems/libs and Repubs/conservs alike–I was not impugning any partisanship.
Second, while you dismiss Smith’s case as about freedom of (poltical) speech, you, like Smith, appear to be criminalizing actions that derive from his speech. For example, “pressuring” Pence or Raffensperger is not a criminal action (he didn’t threaten to kill them), especially if said pressure is grounded in Trump’s belief the election had been stolen. As you acknowledge, getting inside Trump’s head will be difficult, and even if he were told unending by “legal experts” his claims and actions had no basis, he was told by other “legal experts” he was within his rights. That Pence’s (VP) “authorities” re: elections was recorded recently demonstrates the ambiguity in the text that Trump capitalized upon. Asking Raffe speaker to “find” votes doesn’t have to mean conjure them up. Supporting Dershowitz’s view that this is a freedom of speech case also is Constitutional scholar, GWU law professor, and Democrat Jonathan Turley, whom I greatly admire. He explains that Smith is not just criminalizing freedom of speech, but also dis-/mis- information and outright lies.
https://thehill.com/opinion/criminal-justice/4137650-even-lies-are-protected-speech-new-trump-indictment-bulldozes-the-first-amendment/
Third, you question whether Trump is the solution or the federal government is the problem, Siding with critics of Trump. I think both are the problem…BUT the people voted in Trump, and any feds “disgusted” (as you put it) by trying and failing to support him had the duty to resign their positions if they could no longer support him. I’m sure we both worked for people we despised (I certainly have), but I did my duty and my best.
Fourth, while I agree with Brooks’ article on victimhood, like his piece on who the “bad guys” are, it’s starkly black and white. I don’t think this reflects life: There are real victims in this country — Dem prosecutors abuse “prosecutorial discretion” for their political ends; woke DAS refuse to prosecute criminals, oftentimes turning the taes and prosecuting victims or good samaritans; the FBI really did plan to infiltrate Catholic Churches serving “radical traditional Catholics,” whatever they are (and in at least one case did so before their product was uncovered); parents are being sidelined by school administrator from knowing the physical and mental conditions of their children, and the list goes on. These examples are cases of victimhood not just for the individuals involved but for all citizens who expect the government to protect their Constitutionally- and God-given rights.
And finally, re: the Bidens. Like Jonatan Turley, in yet another apt article, I agree that Joe Biden has benefited from his son’s ill-gotten gains. Turley explains how, and he also opines we may never see the direct link people are waiting for. Given the nature of money-laundering (with which we IC folks are familiar), this should come as no surprise. Trump was impeached on the flimsiest of information; perhaps the Republicans can return the favor with Biden, altho I think the case against Biden is already more serious, and I expect it will get stronger.
https://nypost.com/2023/08/09/joe-biden-absolutely-benefited-from-hunters-foreign-business/
Not belabored at all, Lora, and I appreciate your clarifications (and links!). Not sure why my software didn’t automatically post your comment; it suddenly asked me to “approve” it first. Anyway, thanks again for the thoughtful commentary!
As a liberal, I can agree that Hunter Biden traded on his father’s name. Long, unpleasant history of Presidents’ relatives doing that. Case in point was jimmy Carter’s brother and certainly Jared Kushner. That Joe Biden got any money directly or indirectly has never been proved. I found the Turley article to be fount of innuendo and weak sourcing and indeed confusing. He states as facts issues I have seen noted nowhere else. And the kicker is that the so-called definitive House investigation is damp squib.