Here we are again. Plowing new ground in political corruption, criminality and constitutional peril. Special Prosecutor Jack Smith gained agreement from a federal grand jury on four charges in an indictment against Donald Trump related to events leading up to the January 6, 2021 riot at the Capital. As with the national security documents case, Smith spoke briefly after releasing the indictment to the public and encouraged all Americans to READ the indictment. A PDF copy of the indictment is linked below and a full read IS encouraged.
United States v Donald J. Trump (via New York Times)Some key themes and takeaways emerge from a full read of the indictment and are summarized below.
Key Themes
The indictment only names Trump as a defendant, though it assigns labels to six co-conspirators. The language describing the charges references statutes which have already resulted in prosecutions and convictions for dozens of minions who invaded the capital so Jack Smith is unlikely to leave any contributor unscathed. It is likely the other conspirators are not charged in THIS indictment solely as a means to streamline this case's flow through the court with minimal delays that would inevitably arise with SEVEN parties trying to coordinate defense resources. Smith also obviously knows the ever-rising pressure on parties in this case will likely result in additional evidence coming to light that will simplify making cases against the six currently identified co-conspirators. In fact, the indictment explicitly calls this out in paragraph #6 of the indictment:
6. From on or about November 14, 2020, through on or about January 20, 2021, in the District of Columbia and elsewhere, the Defendant DONALD J. TRUMP did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to defraud the United States by using dishonesty, fraud and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government.Knowing the public audience that will formulate opinions and biases on this case as it progresses, Smith's indictment makes a crucial point up front before describing any counts. Paragraph 3 of the indictment explicitly explains to the public and eventual jurors that the President of the United States has a right to LIE to the press and the public and there is no federal statute criminalizing that. However, the President cannot use his administrative powers to violate laws and thwart the basic mechanics of our democratic process.
3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely ,that there had been outcome-determinative fraud during the election andthat he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits,or legal challenges were uniformly unsuccessful.That could be the most damning aspect of the entire indictment. It's bad enough the United States has reached a point where a federal prosecutor has had to file charges against a former President and explain that as a legal matter, the President is entitled to LIE to the press and public. It is worse that the prosecutor feels compelled to further elaborate that the defendant isn't being indicted for lying but for other crimes because he knows forty percent of the public is already predisposed to ACCEPT a President who lies consistently. About everything. Not mere "white lies" about minor political tactics or awkward family matters but "black lies" about the actual outcome of the most fundamental process in our democracy -- a federal election for President.
Smith knows the country has sunk so low that a President lying is not by itself sufficient to eliminate the bias of a single juror who could thwart conviction. Smith has to EXPLAIN that those public lies are not the crime -- they were merely a lever to set conditions for the real crime of partnering with Republican officials to switch electoral slates and create administrative doubt during the official Electoral College Vote certification, actions whose illegality was clear to the defendant and the core co-conspirators.
Smith's indictment is worded to explicitly cast Trump as an active participant and instigator of key steps within the overall conspiracy. Trump's defense is likely to contend his statements merely asked people to identify possible remedies or lodge disputes and recount requests where margins were slim. In other words, Trump will likely claim he was reacting to ideas brought to him by counsel he had no reason to doubt and those concerns raised were chased down to the extent possible under the law. That is pure fantasy and the indictment references communications in which Trump himself originated a new tactic after hitting a dead end on a prior tactic or actively initiated communication with state leaders and his own Vice President with information other evidence proves Trump knew to be false.
The indictment describes conversations between January 2 and January 6 WITH Vice President Pence and ABOUT Vice President Pence and his legal authority to accept alternate slates of electors. That synopsis states that Trump LIED to Pence whose contemporaneous notes reflect the fact that Trump told Pence the DOJ was finding major signs of fraud in multiple states. In reality, the DOJ had ruled out ANY material fraud in ANY state for days prior to that conversation. This small vignette is notable because it conveys Pence provided this information to the grand jury and that Smith likely has ALL of those notes to use in proving the state of Trump's mind to prove intent. It makes that point even more profoundly by pointing out that a sitting Vice President was so concerned about the illegality and damning nature of the actions being requested of him by a sitting President that he memorialized them to protect himself when the scheme inevitably blew up.
Paragraphs 94 thru 97 of the indictment describe meetings between January 4 and January 5 in which multiple parties repeatedly state the likelihood of violence resulting from the chaos injected into the process. In two different meetings on 1/4 and 1/5, Co-Conspirator #2 (Eastman) meets with White House counsel (Eric Herschman?) and acknowledges that his legal theory behind the VP selecting alternate elector slates would be tossed by the Supreme Court if it reached them. Twice, that advisor tells him that if this plan is executed, it will likely trigger violence in the streets. Late on January 5, Trump met privately with Pence to twist his arm one last time. Pence refused to buckle and Trump further threatened him by telling him he would resort to publicly criticizing Pence (which he did). Upon leaving that private meeting, Pence's Chief of Staff heard that threat and was so concerned he notified the VP's Secret Service detail, asking for special precautions to be arranged. The violence of January 6 wasn't a SURPRISE to any of the core actors in the events prior to January 6. For those supporting the scheme, violence the day of the certification was simply the last weapon to adopt in the face of failures on all prior tactics.
Finally, count 4 of the indictment is the most important charge in terms of the larger fate of the United States. The count reads as follows:
From on or about November14, 2020, through on or about January20, 2021, in the District of Columbia and elsewhere, the Defendant, DONALDJ. TRUMP, did knowingly combine, conspire, confederate , and agree with co-conspirators , known and unknown to the Grand Jury, to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States that is, the right to vote , and to have one's vote counted. (violation of Title 18, United States Code, Section241)
This charge is NOT citing the insurrection law that would have included a ban from federal office for conviction. That charge is completely legitimate given the facts but may have been viewed by Smith as a more precarious case to make in front of a jury. The full text of the statute cited by count #4 is still worth reading:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Note that sentence emphasized in bold... and if death results from the acts committed in violation of this section (snip) they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Winning a conviction under this statute would give latitude to the judge to impose a significantly longer sentence, given that deaths did result from the actions taken by Trump. It is also important to point out that this statute does not require the effort undertaken to SUCCEED. Smith alludes to this in references to states where electors were tricked into submitting fake ballots under the premise they would only be used IF the Trump campaign won litigation in the state's courts when in fact those fake ballots were collected and submitted all the way to Pence as part of the scheme, even though Pence ultimately rejected them.
Takeaways
This indictment doesn't set limits on future expansion of charges against Trump or anyone else. It explicitly references efforts undertaken in SEVEN STATES -- Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, Wisconsin -- to cause their legislatures to reject legitimate voting results providing elector votes for Biden and allow those legislatures to arbitrary submit an altered set of electors -- a set which would vote for Trump in contradiction to the legal selection of its voters. Besides the six co-conspirators named by role, this portion of the indictment means there are elected officials and private Republican Party operatives and leaders in these states who could likely get pulled in for similar conspiracy charges. But that is not Smith's focus. He knows the fate of the country requires a conviction of the head of the plot before it becomes even remotely possible for him to become President a second time.
Reading the entire narrative of the 45 page indictment requires grasping one inescapable point.
The very nature of the legal mechanics of the plot attempted by Trump resulted in all of the evidence of the crimes involving Republican figures. The scheme argued that a state legislature could arbitrarily toss the legitimate electoral slate determined by its voters with one selected by a committee chosen by the legislature. The scheme was only attempted in states with Republican controlled legislatures whose results were close enough to allow the false fears of fraud to make it plausibly palatable to its power brokers to attempt the fraud. As a result, all of the EVIDENCE cited in the indictment and will prove pivotal in the trial comes from REPUBLICANS.
Is that a point of pride? That, in such a dire constitutional crisis initiated by a Republican President, it was REPUBLICANS that put a stop to it? Anyone coming to this conclusion need to move a few feet back from the canvas and look at the ENTIRE picture. Powerful elected officials and state Republican National Committee leaders in SEVEN states pursued these actions as requested by a Republican President. It was a narrower set of Republicans in some of these states that ultimately nixed the attempt. Trump had no problem attracting fringe / wack-job "counsel" from people identifying as Republican stalwarts to originate this scheme and file the dozens of bogus court filings to pursue it. The criminality and sheer lunacy of the ideas behind this plot are not EXCEPTIONS in the Republican Party, they now PREDOMINATE, in every state operation and in the vast majority of candidates put forth by the party.
Americans are astounded that despite three sets of criminal indictments and another one looming in Georgia, Trump is not only leading all of his contenders for the Republican nomination for 2024 in the dust but is TIED with Joe Biden in some head to head polls. Trump's dominance within the current Republican Party is easily explained -- the core base of the Republican Party has continued moving to the fringe and that contingent is perfectly happy with Trump's bullying style and willingness to abuse the law for personal benefit because they think they're on his side and he'd do the same for them. They don't understand his willingness to do the same TO them, whenever it suits his purposes.
The window of time for traditional Republicans to gain their moral bearings and respond accordingly is dwindling rapidly. The biggest problem facing contenders is not that Trump is leaving them all in single-digit numbers. Their biggest problem is that he keeps pulling in millions of dollars in donations from potential backers and shifting it to legal defense efforts. Every dollar Trump collects is a dollar that will never flow back to any other Republican. In essence, the continued presence of Trump is acting as a black hole for cash any other Republican candidate will need if voters become Trump-fatigued and eventually abandon him. Even if that happens, the Republican base will be tapped out leaving an alternate nominee broke.
The fact that Trump and Biden are currently TIED in popularity is far more troubling for American democracy. For that to be possible, a large portion of the voting public must still be mentally locked into a simple two-party, two-dimensional view of their choices. If there are things they dislike with "Democratic" policies, they are using a 1970s mind map of politics to conclude those policies can only be thwarted by voting Republican because "Republican" is the opposite of "Democratic."
NO IT IS NOT.
In reality, "Republican" today is something else entirely, on a different dimension than traditional "left / right" dynamics. Unfortunately, our political processes at the federal and state level have been corrupted by rules which protect a two-party scheme. Those rules assume the two parties were roughly equal in power and roughly balanced in their policies with the average being BETWEEN them. The policies coming out of that altered dimension of the current Republican base bear no resemblance to anything experienced in America in its entire history and, if allowed to take root, may literally bring about the end of that history as we currently know it.
Every American needs to read the August 1, 2023 indictment. The crimes described within are not mere traffic violations or tax dodges reflecting individual foibles aimed at creating individual benefits. The crimes involve interference with the core machinery of our democracy. That interference is aimed at preserving access to public power to abuse it for private gain and inflicting punishment on opponents. The concept of "teachable moments" is used frequently in these writings. The indictment of a former President on charges related to thwarting the operation of a Presidential election to retain power is the MOTHER of all teachable moments for Americans of all stripes.
WTH
