Smithmas finally arrived on Tuesday, which somehow appropriately was Jerry Garcia’s birthday. It was a long, strange trip, requiring excruciating patience, but the now thrice-arrested, twice impeached disgraced ex-president Donald Trump will face justice for his effort to remain in power after losing the 2020 election. I couldn’t be more thrilled.
The special counsel, Jack Smith, delivered a “Just the Facts, ma’am” set of indictments. Rather than try to prove that Trump deliberately set off a riot or charge him with insurrection, Smith stuck to less complicated issues. First up, Trump is charged with engaging in a “Conspiracy to defraud the U.S. government” in an effort to overturn the legitimate results of the 2020 presidential election. No one can doubt that he tried to overturn the legitimate results, nor that he hatched a False Elector Scheme with coconspirators to effectuate this plan.
The second charge is “Conspiracy to obstruct an official proceeding.” Specifically, this refers to the Joint Session of Congress held on January 6 for the purpose of certifying the election results. It requires proof that Trump attempted this obstruction in concert with other people, which he obviously did.
The third charge, “Obstruction of an official proceeding,” is the same but does not require proof of a conspiracy It has been successfully used against many of the January 6 rioters.
I’ll let the Washington Post explain the fourth charge:
Conspiracy against rights: This charge criminalizes any joint effort to “injure, oppress, threaten, or intimidate” people to stop them from enjoying their constitutional or federal rights. It was passed after the Civil War, when White vigilante groups such as the Ku Klux Klan were terrorizing Black southerners who sought to vote or otherwise enjoy their rights under the 13th, 14th and 15th amendments. Its use was limited for many decades by Supreme Court decisions, but prosecutors brought the chargein the 20th century in cases involvingracist attacks on civil rights activists and ballot-box stuffing. It was also used against a Nixon aide who authorized the burglary of a psychiatrist’s office after the Pentagon Papers leak. Here, prosecutors argue Trump conspired to stop people from exercising “the right to vote, and to have one’s vote counted.” They must prove that was Trump’s intent.
This last one might seem a bit awkward. But I cast my vote in Pennsylvania and Trump did his utmost to see that my vote did not count. He therefore tried to stop me from enjoying my right to vote and to see my vote counted. When the sitting president of the United States attempted this, I felt injured, oppressed, threatened and intimidated.” Maybe that’s all that has to be demonstrated here, but Trump also used a mob to injure, oppress, threaten and intimidate Mike Pence and the U.S. Congress into disregarding my vote.
The response from the right is somewhat predictable. They are focusing on Jack Smith’s effort to demonstrate that Trump knew his claims about election fraud were lies. When you read the 45-page indictment, you can see how much effort went into this aspect of the case. The concern is that Smith might be setting a precedent that could criminalize reasonable and good faith efforts to contest election results. Relatedly, Smith could criminalize constitutionally protected speech, as lying in and of itself is not a crime. The right is asking whether Al Gore and John Kerry would be subject to imprisonment for questioning irregularities in their losing election bids, or if a future candidate might afoul of the law simply for being wrong about an allegation of fraud.
But I think a proper reading of the indictment shows that Trump isn’t being charged with lying nor with being wrong. His lies are central to the case for two distinct reasons. The first is to show intent and demonstrate bad faith. Trump was repeatedly told by experts and people in a position to know that his allegations were false. This was not an example of a losing candidate legitimately challenging election results that sets a limiting precedent for future challenges.
Secondly, knowing his allegations were false, he still repeated them not only in public but privately. The private lies, delivered to state election officials, state legislators, Justice Department officials, members of Congress and even his own vice-president, were intended to mislead and pressure them into taking illegal acts. The public lies were used to whip up a mob, so they were integral to his conspiracy to disrupt an official proceeding. In other words, he wasn’t simply engaged in political rhetoric for the purpose of winning public support for a policy or an election, but he was lying as part of a plan to obstruct an official proceeding and violate our right to vote and have our vote counted.
What Smith does very well is show the shape of the overall conspiracy, which basically comes down to an effort to prevent the states from certifying that Joe Biden won or, failing that, for Congress to refuse to accept those certifications. Everything that was done in furtherance of this goal, including lying, then comes under the umbrella of the conspiracy. Taking meritless cases to court and losing is not part of the conspiracy because that falls under a political candidate’s legitimate avenues of redress. An exception to this might come in New Mexico where a meritless challenge was filed for the sole purpose of furthering the overall false elector scheme.
A key point to understand is that Trump needed a mob in Washington DC on January 6 because he felt a mob was required to exert pressure on his vice-president and members of Congress not to accept the states’ legitimate electors. He couldn’t assemble a mob in any other way than knowingly lying, so lying then becomes part of the conspiracy rather than simply the exercise of free or political speech.
As I previously mentioned, Smith did not charge Trump with insurrection. He also didn’t charge him with mail or wire fraud or anything related to his efforts to raise money off his lies. Earlier reporting indicated that Smith was looking very closely at how donations were solicited during the pre-January 6 time period, and how that money was eventually used, but perhaps getting into those areas was considered superfluous or likely to delay the trial.
I won’t question the decision to not charge in that area, but it’s one piece of the story that won’t get told at the trial. Trump’s voters will hear plenty about how their hero told them knowing lies, but they won’t hear about how he fleeced them of their money, and I think that’s unfortunate. You can fully understand Trump or the coup attempt without internalizing that he’s fraud and a scoundrel who sees the MAGA crowd as the easiest marks in the country.
Unlike in the Florida documents case Smith brought, the January 6 case will not have a Trump-appointed judge presiding. U.S. District Judge Tanya S. Chutkan was chosen by random lot. A black woman born in Jamaica and appointed by President Barack Obama, she’s known for handing out tougher than average sentences to January 6 defendants. I don’t foresee her doing Trump any favors, although there’s no basis to question her fairness. There’s no question, however, that Trump will be unhappy with how the judge lottery shook out. If he’s convicted, he should expect a tough sentence.
