Trump Indictment: Sad Story, Lousy Legal Theories

I have now read the Democrats’ long-awaited indictment of Donald Trump for his actions after the 2020 election. Here are some thoughts:

* The indictment describes numerous instances of bad behavior by Trump. Trump’s conduct, as described with considerable supporting evidence, deserves criticism, censure, opprobrium. It implies that nominating him to run again for the presidency would be a catastrophic error. But whether the indictment describes crimes is a completely different question.

* The indictment repeatedly alleges that Trump “knowingly” made false claims about the election being stolen in various states. It supports these assertions with evidence that someone had told Trump that his claims were untrue. But other people were telling Trump that the allegations of a stolen election were accurate. I think it is highly probable that Trump sincerely believed that voter fraud occurred on a massive scale and cost him the election.

* One needs to recall the state of affairs as of November and December 2020. There were many reports of voter fraud. Democrats in Philadelphia and Detroit locked Republican poll watchers out of the buildings where votes were being counted. The Republicans had to go to court to obtain admittance to the buildings, where they still were not permitted to see what was going on. In Atlanta, Democrats falsely claimed that a pipe had burst, requiring ballot counting to be suspended overnight. Once the press and Republicans had departed, they continued counting. In a number of states, statutory requirements intended to provide security for mail-in ballots, of which there were an unprecedented number that year, were illegally suspended, evidently for the purpose of facilitating voter fraud. There were reports of large numbers of ballots appearing in the middle of the night in various cities, virtually all of them for Joe Biden.

* That voter fraud occurred is indisputable. The indictment alleges that the fraud that occurred was not “outcome determinative” in any state. With the perspective of two and a half years since the election, I think this is probably true. But no one knows for sure. The key point is that there is not enough time between the election and inauguration day to litigate claims of voter fraud. Democrats like to say that all of the lawsuits Trump filed were dismissed on one ground or another. That is true, but in not a single case was the extent of voter fraud–the question of who actually won the election–ever litigated. Such litigation would require, at a minimum, six to twelve months. In the time available, it simply couldn’t be done. And once Joe Biden was inaugurated, the cases were moot.

* Lacking the ability to litigate vote totals on the facts, Trump and his advisers had to resort to a series of bad legal arguments to try to overturn results, or keep his claims alive, in a number of states. All of these attempts failed, having been consistently rebuffed, usually by Republican office-holders. But it is not a crime to assert bad legal arguments.

* The crowning bad argument was Trump’s theory that Mike Pence, as vice president, had discretion to decide what slate of electors should be approved, or to send an election back to a state. This was, in my opinion, a very weak reading of the Constitution and the federal law that governs the electoral process. (It would be quite a revelation to find that each sitting vice president has discretion to decide who the next president will be.) That said, it was not as bad an argument as, for example, the one that prevailed in Roe v. Wade. And again, making bad arguments is not a crime. Vice president Pence properly rejected Trump’s theory and certified the electoral votes per the states’ findings.

* The indictment deals rather briefly with the January 6 protest. It seems to blame Trump for the excesses of a small percentage of the demonstrators, but does not charge him with incitement or anything similar.

* Having read the indictment’s lengthy factual allegations, a reader’s response is, What’s the point? Trump, rightly or wrongly, thought the election was stolen. He advanced various arguments and legal theories to obtain review of the election results and keep open the possibility of different electors being chosen. In that effort, he was uniformly unsuccessful. So what?

* The indictment’s legal theories strike me as a bad joke. (Ironically, the legal theories asserted in the complaint may be more far-fetched than Trump’s legal theories that form the basis for the indictment.) Count 1: “Conspiracy to Defraud the United States.” Ridiculous. If a government contractor on a cost-plus contract inflates his costs, he is defrauding the United States. How this applies to Trump’s efforts to assert his claims on the election is anyone’s guess.

* Count 2: “Conspiracy to Obstruct an Official Proceeding.” This is Congress’s ministerial certification of electoral college results, which historically has mostly been routine. A small group of the protesters who had assembled in Washington, largely at Trump’s urging, did disrupt the proceedings. But Trump did not tell them to do so, or otherwise conspire with them. The indictment focuses on Trump’s alleged failure to do enough to cause the protesters to disperse, which is not at all the same thing.

* Count 3: “Obstruction of and Attempt to Obstruct an Official Proceeding.” Same thing.

* Count 4: “Conspiracy Against Rights.” I am so old, I can remember when liberals objected to criminal prosecutions of nebulous “conspiracies” that didn’t actually do anything. The “rights” in question here, as alleged in the indictment, are the rights of people to have their votes counted, which Trump supposedly tried to infringe (unsuccessfully) by critiquing election results in various states. A ridiculous claim.

* Special Counsel Democratic Party Hack Jack Smith says he wants a speedy trial. Another bad joke: as Scott has pointed out, if Smith really wanted a speedy trial he should have brought these charges sometime during the last two years. The timing is obviously driven by the 2024 presidential election calendar. This whole thing, like the other Trump criminal indictments, is political theater, not law.

* So why are the Democrats doing it? As I have said before, I think the Democrats desperately want Donald Trump to be the Republicans’ 2024 nominee. They know that bringing obviously political charges against him will cause Republican voters to rally round. Whether that translates into actually nominating Trump remains to be seen.

* This case is much like the Stormy Daniels incorrect-document prosecution in New York. As a legal theory, the prosecution is feeble at best. But that doesn’t mean that Trump’s underlying conduct is anything to be proud of. In the aftermath of the 2020 election, Trump disgraced himself by adopting positions that were at odds with reality, by trying to bully others into going along with obviously indefensible claims, by putting his own vice president in an impossible position based on a terrible legal theory, by making ridiculously false promises to a volatile crowd of 100,000 or so, with consequences that might have been predicted, and so on.

* In sum, the indictment does not make out a case that Trump is a criminal who should go to prison. But it does make out a strong case that Trump is a dishonest egomaniac with terrible judgment who should never again be entrusted with a responsible government position.

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