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The Latest Trump Indictment is the Most Egregious Yet
And conviction is well within the realm of plausibility.
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Here’s the thing: I understand that some of the readers of this newsletter might utterly detest Donald Trump and think he’s the worst thing to happen to this country since The Wire ended, but it’s imperative that you consider the former president’s indictments through a detached, dispassionate lens. That’s the only way you can truly grasp the gravity of the implications. It’s a dangerous precedent for the ruling party to prosecute its chief political rival and a current presidential candidate by using untested legal theories.
The latest Trump indictment by Biden Justice Department special counsel Jack Smith, which is based on four felony charges1 arising out of “efforts to undo President Biden’s victory in the 2020 election,” feels like the main event because it’s been talked about incessantly by those of the left-wing persuasion ever since Jan. 6, which lives on in infamy in their fragile memories. But in reality it serves as little more than further confirmation that prosecutors have singled out Trump and are improperly stretching the law to charge him.
The optics surrounding this case are revealing. It took two years before Attorney General Merrick Garland appointed a special counsel to investigate Jan. 6, and he did so a week after Trump announced he was running for president against Biden, the man who appointed Garland to the position of the nation’s chief law-enforcement officer.2 Smith has now turned in his indictment when Trump is clearly the heavy front-runner to win the GOP nomination.
The news also comes after the president’s son has been given extremely soft treatment by the Biden DOJ, with his laughably generous plea deal on tax evasion and a gun charge unexpectedly falling apart last week,3 and after the Biden family’s corruption has been exposed. Now, at the exact time that most Republicans have doubts about the DOJ’s willingness to prosecute crimes committed by prominent figures in the Democratic Party, and against the backdrop of Russiagate, the DOJ is bringing a third criminal indictment of the former Republican president.
Jack Smith’s 45-page document, which reads like an MSNBC monologue interspersed with #Resistance ad lib, paints Trump as the focal point of a sprawling criminal conspiracy—not to incite violence or an insurrection, despite the fact that we’ve been breathlessly told so for the past three years, but to “spread lies that there had been outcome-determinative fraud in the election and that he had actually won.” We are promised “unlawful means,” and yet one cannot find the unlawful act by Trump. Read the verbs used: “publicly repeated,” “issued a Tweet,” “called,” “held a meeting,” “publicly maligned,” “re-tweeted,” “encouraged supporters,” etc. The vast majority of the indictment concerns lies about the election, overaggressive or implausible legal theories, and political pressure.
This is the stuff of politics, not crime. In effect, Jack Smith is endeavoring to criminalize protected political speech and flimsy legal theories—when the Supreme Court has repeatedly admonished prosecutors to refrain from creative theories to stretch penal laws to reach misconduct that Congress has not made illegal. As legal analyst Jonathan Turley has emphasized, in order to secure a Trump conviction, Jack Smith “would need to bulldoze through not just the First Amendment but also existing case law holding that even false statements are protected.”
To get around this, Smith is insisting that Trump must have known that his statements were false and therefore was engaged in criminal fraud4 to obstruct or challenge electoral results. The problem, of course, is that if Trump actually did/does believe that he didn’t lose the election (and he’s been nothing if not consistent about this), the indictment collapses. And so in an effort to demonstrate his knowledge, the indictment details how many people told Trump that he was wrong about the election and wrong about the law.5
But it wasn’t a crime for Trump to ignore most legal analysts or even his White House counsel and to instead listen to a small group of lawyers who assured him that a challenge might succeed and that there was evidence of massive election fraud. He’s allowed to seek out enablers who tell him what he wants to hear. All presidents do this. Indeed, Joe Biden ignored virtually unanimous legal opinion and relied upon a single law professor’s say-so to justify his administration’s eviction moratorium, an obviously unconstitutional executive action that later had to be reversed.
What makes this case especially ominous is that Trump is essentially being charged with not accepting the “truth,” and the federal government is being set up as the arbiter of truth. The DOJ has now vested itself with the authority to adjudicate the veracity of political claims, and when a determination is made that a claim fails to meet DOJ standards, it becomes not just false but criminally prosecutable.
But under our current understanding of free speech, hyperbole and worse are protected. Just as Democrats were engaged in protected speech when they called Trump illegitimate and challenged the certification of his 2016 win, even though they knew that their challenges were completely meritless, so too has Trump been engaging in protected political speech in arguing that the 2020 election was stolen. Jack Smith and his TDS-afflicted fans are ludicrously suggesting that politicians who make false statements are now in breach of the Constitution.6 If making false political claims and then taking concerted action pursuant to those claims is now a grand criminal conspiracy, you might as well charge the entire U.S. political system.
As for the obstruction charge, all Americans, including presidents, have a right to attempt to influence Congress, even based on questionable or delusional evidence. In order to establish obstruction, Smith must prove that Trump’s efforts at persuasion were corrupt, meaning he knew his lobbying had no factual or legal merit. National Review points out that the concept of corruption “is meant to reach clearly criminal conduct, such as evidence manipulation or witness tampering. It has never been understood to reach wrong-headed legal theories.” Applying it this way, as is proposed in the indictment, chills not only political speech and legitimate challenges to election procedures, but the constitutional right of a defendant to mount a legal defense.
Lastly, the indictment’s fourth count, “conspiracy against rights,” might be the most absurd. Trump is being charged with a civil-rights violation, on the theory that he sought to counteract the votes of Americans in contested states and based on a post–Civil War statute designed to punish violent intimidation and forcible attacks against blacks attempting to exercise their right to vote. The law has been arbitrarily plucked from a wildly different historical epoch and dusted off for use in present-day circumstances that have nothing at all to do with the purpose for which the law was originally conceived.
And if it was criminal “voter disenfranchisement” to contest the certification of election results in 2020, someone’s going to have to explain how pressuring Electors to disregard the popular vote outcome in their states wasn’t also a criminal voter disenfranchisement scheme in 2016.
Fatigue with Trump’s incendiary carnival barker act is likely to lead some people to misreckon the gravity of this case. Federal prosecutors have charged a former president with conspiring to impede the peaceful transition of power, taking the country and the courts into uncharted territory. UC Berkeley law professor John Yoo notes that our legal system hasn’t dealt with an accusation as serious as this since the Jefferson administration prosecuted former vice president Aaron Burr for treason in 1807. Richard Nixon resigned rather than face removal through impeachment, and Gerald Ford pardoned him. Even the Republican victors in the Civil War declined to charge Confederate president Jefferson Davis, and the Founders didn’t prosecute loyalists after the American Revolution.
If you’re going to indict a former president on such grave charges, you want as close to a slam-dunk case as you can get, and you want the crime to be an act that anyone of any status would be indicted for in similar circumstances. You don’t want the DOJ dusting off some rarely used, long-forgotten statutes and applying the law in a way that it has never been applied before. As Andrew McCarthy aptly states:
It is a black-letter principle that criminal statutes must be sufficiently clear that a person of average intelligence can grasp exactly what conduct is forbidden. If prosecutors can make it up as they go along by gradually expanding the scope of criminal laws, then people cannot know what the law prohibits.
Untested and extravagant legal theories shouldn’t be used to prosecute anyone, including former presidents. In this respect, Jack Smith should have heeded Justice Robert Jackson’s warning that prosecutors should beware of “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.” The case Smith has laid out flies in the face of the Supreme Court’s admonition that prosecutors are not at liberty to stretch vague criminal-law concepts in order to reach conduct that Congress has not clearly criminalized in a penal statute, and that statutes shouldn’t be applied to conduct that those statutes were not commonly understood to address when enacted.
It’s obvious that Smith is allowing a sense of righteousness to compensate for the legal deficiencies in his case. He came off as more of a pundit than a prosecutor in announcing his indictment, delivering a monologue condemning the Capitol riot that sounded like it had been written by Adam Kinzinger despite the fact that Trump isn’t being charged with anything related to the riot. This was a political statement, clearly aimed at swaying the jury pool in Washington, D.C., where the Justice Department brags daily about having charged more than a thousand rioters.
Prosecutorial discretion in not bringing charges is often exercised for many legitimate reasons that are far less consequential than the public interest in keeping an incumbent administration’s DOJ out of electoral politics—particularly when the DOJ’s target is the incumbent president’s chief political rival,7 who happens to be (somewhat amazingly) doing just as well if not better in the polls. But Smith has decided to prosecute an election-interference case that will interfere with the 2024 election despite the absence of a clear and serious crime supported by very strong evidence. And in bringing a federal criminal conspiracy charge consisting entirely of acts that are not themselves criminal, all of which are directed through the channels of politics, government, and speech, he is abusively expanding the criminalization of politics and opening the floodgates for adjudicating political disputes through the blatant misapplication of criminal law.
Ultimately, Trump was impeached for a crime that he didn’t commit — incitement of an insurrection — and now is being prosecuted for political offenses that, while they might be unethical, don’t break any laws. And the former president is in trouble: These charges carry a jail sentence with them, and conviction is well within the realm of plausibility. Trump will be up against a jury in deep-blue D.C. (where he won just 5% of the vote) and a judge (Tanya Chutkan) whom the Associated Press called the “toughest punisher” of Jan. 6 defendants. She also worked at the same law firm as Hunter Biden and is on record proclaiming her belief that Jan. 6 was an attempt to violently “overthrow the lawfully elected government.”
“May you live in interesting times.”
The special counsel charged Trump with four counts: (1) conspiracy to defraud the United States; (2) conspiracy to obstruct an official proceeding; (3) obstruction of and attempt to obstruct an official proceeding; and (4) conspiracy against rights.
Biden “privately” scolded Garland for not moving aggressively enough to prosecute Trump for Jan 6. These “private” comments then made their way into the New York Times, after which Garland moved more aggressively to prosecute Trump.
The Biden DOJ tried to give the president’s son immunity from any future prosecutions and then slapped more indictments on the president’s leading opponent one day after it all fell apart in court. Banana republic.
The criminal fraud allegation is ridiculous, especially coming from the much-ballyhooed career prosecutor Jack Smith, who should know better. Supreme Court cases beginning in 1987 with McNally v. United States and ending with this past term’s Ciminelli and Percoco cases hold that “defrauding the United States” requires the defendant to have fraudulently swindled money or other tangible property out of the U.S. government. Deceptive and mendacious political rhetoric doesn’t constitute criminal fraud. And even assuming Trump knew his claims were false, there would still remain the controversial effort to link his false claims to the actions of others in challenging the election.
Among the evidence cited for the comical allegation that Trump “knew his claims were false” is that Mike Pence told him he had personally seen “no evidence of outcome-determinative fraud.” So according to Jack Smith, it’s impossible that Trump could have disagreed with Mike Pence.
In the 2012 decision United States v. Alvarez, the Supreme Court held 6-3 that it is unconstitutional to criminalize lies in a case involving a politician who had knowingly lied about his military decorations. The court recognized that criminalizing false statements “would give government a broad censorial power unprecedented in this court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.”
Prior polls showed that roughly half of the public thought that the charges against Trump were politically motivated. This indictment, which strains to charge Trump using dubiously applicable statutes — even as the Biden DOJ refuses to investigate Biden family corruption or to indict Hunter Biden on years-old, straightforward felonies — will only magnify that view and further exacerbate our nation’s divisions.