The Georgia indictment relates to Donald Trump’s (and 18 other defendants’) post-election efforts to reverse the apparent result of the 2020 election, in Georgia and elsewhere. That Trump made such attempts is not disputed. The question is, what did he do that was illegal?
The indictment alleges a vast conspiracy, supported by 161 “overt acts,” that ultimately comprises Count I, a violation of Georgia’s RICO statute. The problem is that, with two exceptions, the “overt acts” are all legal. You can’t aggregate a series of legal acts and make them a crime by calling them a conspiracy.
The indictment alleges that Trump and his co-conspirators made a number of false statements, starting with Overt Act 1:
On or about the 4th day of November, 2020, DONALD JOHN TRUMP made a nationally televised speech falsely declaring victory in the 2020 presidential election. Approximately four days earlier, on or about October 31, 2020, DONALD JOHN TRUMP discussed a draft speech with unindicted co-conspirator Individual 1, whose identity is known to the Grand Jury, that falsely declared victory and falsely claimed voter fraud. The speech was an overt act in furtherance of the conspiracy.
The indictment sets out in detail statements that were made by the defendants about voter fraud in Georgia and other states, all of which are alleged to be false. Of course, in the wake of the election, there were many claims of voter fraud. Some of these proved to be true, I think, while others proved to be incorrect. But so what? It is not, in general, a crime to make false statements. If it were, Washington would be a ghost town.
The second main thrust of the indictment involves the fact that Trump and his “co-conspirators” arranged for an alternate slate of pro-Trump electors to be identified in Georgia. The indictment recites efforts by Trump and others to convince officials in Georgia and other states to certify his alternate slates, or otherwise to reverse the apparent results of the election in a particular state. These alternate electors were selected, as White House adviser Stephen Miller explained, to preserve Trump’s rights in the event that one or more of his legal challenges succeeded:
“As we speak, today, an alternate slate of electors in the contested states is going to vote and we’re going to send those results up to Congress,” he continued. “This will ensure that all of our legal remedies remain open. That means that if we win these cases in the courts, that we can direct that the alternate state of electors be certified.”
I don’t think that such alternate elector slates are unprecedented, and in any event there is nothing illegal about identifying such would-be electors, however futile it might be.
The indictment recites, with much repetition, the fact that Trump and his allies tried to persuade government officials in Georgia and other states to take actions that could result in the apparent election results being reversed. All of those efforts failed, culminating with the unsuccessful effort to convince Vice President Mike Pence that he had legal authority to exercise discretion in recognizing states’ electors in the event of a dispute.
“Overt Act 6” is a typical example of these allegations:
On or about the 21st day of November, 2020, MARK RANDALL MEADOWS sent a text message to United States Representative Scott Perry from Pennsylvania and stated, “Can you send me the number for the Speaker and the leader of PA legislature. POTUS wants to chat with them.” This was an overt act in furtherance of the conspiracy.
But again, so what? Taking legal steps to try to overturn the apparent result of an election is not illegal. That is what Al Gore did. It is what Stacey Abrams did. It is how Al Franken got into the Senate. In Trump’s case, his legal arguments were uniformly weak. But it is not a crime to make a bad legal argument. If it were, the U.S. would be suffering from a shortage of lawyers.
In my view, there are only two small portions of the indictment that allege actual crimes. The first relates to some of the defendants gaining access to a voting machine, and also to some physical ballots, as part of their effort to find evidence of voter fraud. I assume that these actions were actually illegal as alleged in the indictment, but they are not particularly serious and hardly justify the grand conspiracy described in the indictment. The indictment also alleges that someone named Robert Cheeley committed perjury in his testimony before the Grand Jury. I have no idea whether that allegation is true, but if so, it obviously does constitute a crime.
But as to Trump, the indictment is mostly a howl of outrage at his temerity in claiming that the 2020 election was riddled with voter fraud and he should have been the winner. Trump may have been wrong about the extent of the fraud–which no doubt was considerable–and I am sure he was not the rightful winner. But expressing his opinions on these subjects, and pursuing legal remedies to vindicate what he saw as his rights, are not crimes.
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