DC Indictment “is long on alleging Trump’s deceit but very short on showing criminality”
My Op-Ed in The Telegraph: “If the feds think Trump incited the January 6 riot that interfered with the electoral count, then charge him with that. But don’t play games with dubious conspiracy and fraud claims disconnected factually from the riot.”
![https://www.youtube.com/watch?v=IvJVZAxJE8Y&feature=emb_logo](https://c1.legalinsurrection.com/wp-content/uploads/2021/01/Screen-Shot-2021-01-06-at-11.00.43-AM.jpg)
I had an Op-Ed on August 7, 2023, at the British newspaper The Telegraph.
The headline assigned to the op-ed was not what I picked, it was chosen by the Telegraph. I’m not thrilled with the headline because it really doesn’t reflect the substance of the op-ed, If Trump’s indictment is to stand, Democrats should be charged too over 2016. Headlines typically are selected by the publication, not the author (we do the same thing, but if it’s a major change we will clear it with the author). My op-ed was not about indicting Democrats, but about the weaknesses of the indictment of Trump.
So, read the op-ed, not the headline! But first, some background, reflecting what I brought to the table in approaching the alleged criminality of Trump’s actions.
I was against the efforts – after mid-December 2020 – to continue to contest the election. On December 14, 2020, I wrote that since all legal avenues were exhausted to challenge the election results and the electors had cast their votes, continuing the effort could have grave long-term repercussions, Where things stand at this hour:
Today electors appointed by states around the country cast their votes for Biden-Harris in an amount enough to elect them. I’ve looked at two Congressional Research Service Reports, one from 2020 and one from 2016, explaining the process for counting and contesting electors at a Joint Session of Congress. The bottom line is that even if you think contesting electors at a Joint Session of Congress is a good thing, it’s not going to happen here because both chambers would have to concur. There is zero chance the Democrat-controlled House would vote to disallow Biden-Harris electors.
So the nomination of alternative electors, and the vow to contest the electors on January 6, is a dead end. It’s a dead end that could have serious consequences if it causes Democrats to win both Senate runoff elections in Georgia on January 5. That would put the Senate (along with the House) in Democrat hands with a Democrat president, and a power-hungry Obama-third term (at best) crew in charge.
It also distracts from a necessary organization of a resistence to the radical Democrat agenda, a resistence that needs to be organized now….
Of course, that is exactly what happened. With Trump’s complete focus on overturning the elections and attacking Georgia Republicans for not backing that effort, the two Georgia Senate elections were thrown away. If Republicans had won even one of the seats, Republicans would have had a majority in the Senate and could have blocked the Biden agenda and his radical judicial and administrative nominees. Instead, we got Kamala Harris casting the tie-breaker.
I also was against Trump’s and others’ attempts to claim that Mike Pence could refuse to count the electoral votes. I wrote a week before January 6 that the legal claims to that effect were frivolous and based on misleading and fraudulent legal arguments, January 6 – No Mike Pence Can’t Just Reject Electoral Certifications:
A claim has circulated widely in the past few days that Vice President Mike Pence, as President of the Senate, has the power and discretion to reject certifications. If Pence had such power and chose to exercise it, it would be over, but he doesn’t…. [legal analysis omitted]
I’ve gone farther down this rabbit hole than I should have, particularly on New Year’s Eve. If you want “to fight” on January 6 for political reasons, I get it, I’m as frustrated as you are (maybe more so).
It’s just bothered me that really bad legal takes — and these are not the first — have mislead well-meaning and justifiably-concerned people to think the outcome on January 6 is going to be different.
So I come to the present DC indictment having been politically against what Trump did, not to mention the one thing he is not charged with (yet) in the current DC indictment, the J6 riot which actually did disrupt the electoral count for a while.
With all that, I’m not convinced that the DC indictment makes out the case that a crime was committed, as I’ve expressed many times. I would not be surprised to see an eventual beefed-up superseding indictment, but the current indictment is on thin legal grounds.
With that as background, here’s the Op-Ed, finally:
The indictment of Donald Trump in the District of Columbia federal court regarding Trump’s post-2020 Election conduct is long on alleging Trump’s deceit but very short on showing criminality.
The 45-page document, like any indictment, is just allegations that must be proven beyond a reasonable doubt in court, and Trump is entitled to the presumption of innocence. Given the shoddy conduct of the Department of Justice and FBI in recent years, the accuracy of the allegations cannot be presumed.
But the allegations in the indictment do reference purported evidence, such as text messages, emails, contemporaneous notes, and testimony. If the evidence cited exists and is not mischaracterized, Trump’s perfidy in alleging election fraud sufficient to have changed the outcome of the election must be taken seriously.
The gravamen of the indictment alleging false claims of election fraud is not new, it has been the subject of countless pundits for years, but many of the details are new. Trump, it’s alleged, engaged in a wide-ranging scheme to falsely claim the 2020 election was stolen, when in fact those closest to Trump at the time were telling him the most significant supposed examples of election fraud were not true.
Trump’s inner circle allegedly were telling him that what he was saying was false, and in some instances, Trump allegedly acknowledged that falsity. Yet he persisted in portraying the election as stolen, and then allegedly conspired with others to advance contrived legal theories to justify the creation of alternate elector delegates in key states.
Even so, the indictment doesn’t provide a compelling case to throw Trump in jail.
An indictment should be more than a political document. Particularly when used against a political opponent of the President in the election period, an indictment should lay out a compelling case for criminality. The DC indictment falls short on demonstrating criminality.
Most of the indictment focuses on speech by Trump that is constitutionally protected. The indictment itself acknowledges that people have a right to assert election fraud, that an election was illegitimate, and that there was election interference, even if the factual and legal grounds were shaky. Certainly Democrats have been denying the legitimacy of Trump’s 2016 election based on false claims of Russian interference, and no one has been indicted for that.
So why indict Trump, other than for political reasons? The core of the indictment is interference with the functioning of Congress with regard to counting the electoral votes. Yet the interference with the count of electoral votes took place by virtue of the riot at the Capitol on January 6, not from any statements by or actions of Trump prior to the riot. By all accounts, Congress was ready to count until the riot.
So if interference with the electoral count was the core criminality, the indictment should charge Trump with inciting the J6 violence. But it doesn’t. It’s a glaring omission, presumably because the DOJ doesn’t have sufficient evidence to prove incitement.
Lacking evidence of incitement of the act – the riot – that actually caused the interruption of the electoral count, DOJ has asserted tenuous legal theories that other acts of Trump were a “conspiracy” to disrupt the count and to deprive voters of their votes. Such flimsy legal theories are destructive to the rule of law when brought against the leading candidate of the opposition political party during election season.
If the feds think Trump incited the January 6 riot that interfered with the electoral count, then charge him with that. But don’t play games with dubious conspiracy and fraud claims disconnected factually from the riot.
At EqualProtect.org, the nonprofit I lead championing equality, we insist that every American receive the equal protection of the laws. That includes Donald J. Trump.
For whatever the reason this op-ed touched a nerve with people whose sole goal is to Lock. Him. Up.
A similar point also has been made by others, including Jack Goldsmith in The New York Times today, The Prosecution of Trump May Have Terrible Consequences (emphasis added):
It may be satisfying now to see Special Counsel Jack Smith indict former President Donald Trump for his reprehensible and possibly criminal actions in connection with the 2020 presidential election. But the prosecution, which might be justified, reflects a tragic choice that will compound the harms to the nation from Mr. Trump’s many transgressions.
Mr. Smith’s indictment outlines a factually compelling but far from legally airtight case against Mr. Trump. The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, of his freedom speech and of the contours of presidential power. If the prosecution fails (especially if the trial concludes after a general election that Mr. Trump loses), it will be a historic disaster.
But even if the prosecution succeeds in convicting Mr. Trump, before or after the election, the costs to the legal and political systems will be large.
There is no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party’s probable nominee.
This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations….
But here we are….
Yes, here we are.
Heading towards the unknown.
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Comments
You’re not the only one that sees it. Most people with common sense and understanding can see right through the double standard, abuse of law and election interference.
And yet today Bitch McConnell was out there publicly urging House Republicans to NOT impeach Biden.
That’s why Democrats are doing it.
Because they face ABSOLUTELY NO CONSEQUENCES for doing it.
At the rate the disclosures are coming, McConnell may not get his wish. If only they can find a smidgen on Obama. How could he not know?
McConnell is right. If the House impeaches Biden the senate is guaranteed to acquit him, and he will trumpet that as a vindication. We’ve already seen this play run in several variations. Why does anyone think this time would be different?
Welcome back!
Thank you
Deterrence and transparency is reason enough.
The House must not impeach unless they have proof that Biden solicited and/or took bribes. This means proving that he did an official act in exchange for the money, and this probably means a video recording of a bribe deal is necessary. The House certainly has enough evidence to begin an impeachment inquiry, but not enough to impeach – yet. Does sufficient evidence to impeach exist? I have my doubts, but Biden is such a prolific bribe taker that he might have screwed up somewhere. Therefore, it is worth it to dig up every smidgeon of evidence that can be obtained.
The Dems will prevail in the Senate and all that we will hear is how bad this was for the Loving Father… the Father of Beau…. the Loving Father of the Senate …. real crime never happens to the Dem Elite…. just ask Epstein and Rich.
Also… do not expunge Trump’s impeachment… let that stand as the abuse of power so characteristic of the Left.
What happened.
So glad you are back!!!
It’s not about removing Biden. Everyone knows there’s no possibility of that. It’s a chance to get out some of the truth to the public about who he is and what he’s done. DOJ will do nothing about his crimes, and the media will do their best to suppress any mention of what he’s done in the news. A congressional investigation and hearings will have to be covered to some degree, and at least some of the facts will get out — maybe a lot, if it gets rolling good.
They should definitely have impeachment hearings, and publish all the evidence they find. But they should not actually impeach, because the senate is guaranteed to acquit.
Great column, Prof. Now comes the deluge from those who imagine that the fact that they want something to be true must make it true, no matter the facts.
but about the weaknesses of the indictment of Trump.
Understatement of the century.
The indictment(s) of Trump are not ‘weak”. They are criminal. There’s a big difference.
There is nothing legitimate about any of the cases brought against Trump, and there was never intended to be. This is one of the worst crimes in all of American history and the traitors behind this conspiracy to railroad President Trump are going to go down in history as people more reviled than Benedict Arnold, as they should be.
“History is written by the victor”. I fear that whoever is the Republican candidate in 2024 will lose because the Leftist/Democrats have nearly perfected the art of electoral fraud. Therefore, when the Left finally institutes its Orwellian “Utopia”, the history they write will make Obama and Biden the Greatest U.S,. Presidents since the beginning of the country. The crimes being committed to do this will be upheld as the saviors of “Our Democracy” (i.e. rule of the Democratic Party).
Indeed they are beyond weak. And they do seem to me to rise to the level of violating 18 USC 242 (Deprivation of Rights Under Color of Law) and, ironically, 18 USC 241 (Conspiracy Against Rights) that Smith is charging Trump with violating.
https://www.thegatewaypundit.com/2023/08/now-we-have-proof-tgp-exclusive-massive-2020/
NOW WE HAVE PROOF! TGP EXCLUSIVE: Massive 2020 Voter Fraud Uncovered in Michigan – Including Estimated “800,000 Ballot Applications Sent to Non-Qualified Voters” – Bags of Pre-Paid Gift Cards, Guns with Silencers, Burner Phones, and a Democrat-Funded Organization with Multiple Temporary Facilities in Several States
I heard about that. I did not delve into the details. Guns with silencers? Where does one even get a silencer?
Plenty of well-established merchants..
Even one called The Silencer Shop.
Or, for those who think they’re cleverly staying under the radar (they aren’t), the Solvent Trap Shop.
The silencer are suppose to be registered too. Wonder if they were?
According to your own source, they were registered and were 100% legal.
? What sources would that be? Is it it a joke son?
The source you’re relying on for this whole story. The GP piece to which you replied.
Despite what Hollywood would have you believe, they’re not complex or particularly hard to make.
Most people don’t bother with them because again, despite what Hollywood would have you believe, no, they do not actually ‘silence’ anything. The absolute best silencers only reduce the sound by maybe 20-30%. They don’t make it make a tiny ‘thwip’ sound that people 5 feet away magically can’t hear.
The actual point of a silencer is to make the sudden loud noise sound like something OTHER than a gunshot, and to make the bullet crack when it fires to make them confused about the location of the shooter (unless you intentionally use subsonic ammunition, which is hard to get and reduces the range to practically nothing, the bullet crack when it breaks the sound barrier is LOUD).
As easy as a pillow 🙂
Literally every gun store around me offers them for sale.
More garbage from TGP. Taking the article at its word, it reports no proof at all of any fraudulent ballots being cast. At most it exposes an operation that was caught attempting to insert fake registrations into the system. If that is what was indeed happening, then it is reasonable to suspect that the same outfit tried the same thing on other occasions and was not caught, leading to some unknown number of fake names on the roll. (Of course it is easy to come up with more innocent explanations, which their lawyers would undoubtedly claim to be the truth, and which it would be difficult to disprove.) It would then be reasonable to suspect (but not to assert as fact) that some subset of these fake registrations were then used to vote. If that were to happen, that would be vote fraud of the kind we are discussing now, but what TGP presents is very far from proof that it happened.
The article also makes a separate allegation that 800,000 ballot applications were sent to people who weren’t eligible to vote. If true, that could have led to some unknown number of those applications being returned, and votes being sent out, and some unknown number of those votes being returned and counted. Or not. In itself sending out 800,000 bad application forms (if that is even true) is not proof of fraud in the election result; it’s merely highly suggestive and calls for investigation.
Ok but this is one incident among many questionable occurrences in 2020 across multiple swing states. It merited more attention and investigation than it apparently received. At the very least, it belies the claim that 2020 was the most secure election ever.
If you want to investigate ballot fraud, the place to look is what happened to the ballots that the post office was unable to deliver? If a registration had a fake address, that ballot ended up in an undeliverable ballot bin at the post office, and something happened to them. Were they returned to the issuer, destroyed, or simply disappeared? Are there proper records? If you wanted to fill out mass numbers of fraudulent ballots, your friendly local postal union rep is where you would get them.
If a registration had a fake address, it’s far more likely than not that there was never any application for a ballot, and therefore no ballot was ever sent. Thus no ballot went missing. What you want to investigate is registrations that appear to be invalid and are listed as having voted.
Oh I don’t think we have to worry that this clown hack will supplement the DC indictment with new meritless charges at the politically opportune moment. The DOJ is a corrupted entity enjoying its power grab and it appears the federal courts in Washington are willing accomplices. It will not be easy to restore the rule of law. And that won’t happen with the DOJ/FBI as currently structured.
Rooting out bad players could lead and firing them could put a dent in our deficit. What would we save if these agencies were downsized by 25%, or even more?
Yes, here we are.
Heading towards the unknown.
Oh … it’s known, even if many refuse to acknowledge it. It’s well-known. And we aren’t “heading towards” it. We’re deep in it.
This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations….
WTF, not driven by partisan motivations? Come on, where have you been the last 7 years? Geez.
At most, some of those closest to him were telling him that “the most significant” [in whose opinion?] supposed examples were not true. Others of those “closest to him” [who determines this?] were telling him that they were true; why should he have believed the first lot and ignored the second? Further, according to this even the first lot were telling him at least some of the examples were true, or at least might be true, and in states like GA even those would have been enough to swing the result. So I’m not seeing any substance here.
Again, only some in his inner circle
All the examples I’ve seen of this supposed acknowledgement don’t amount to any such thing. The most I’ve seen is examples of his allegedly acknowledging that the announced results were against him, and therefore if nothing was done to overturn them he would lose. Which is ****ing obvious, and of course he acknowledged that. If he were completely oblivious to it, and imagined that all was in place for his second inauguration then we wouldn’t have seen any of what’s alleged against him! He’d simply have sat still and prepared for the inauguration that wasn’t coming. It’s precisely because he did know the result as announced had gone against him that he worked so hard to change that. I have not seen anything that has him acknowledging that he actually got fewer valid votes than Biden in the relevant states, and thus that Biden was the legitimate winner. So to me this so-called “acknowledgment” is a great big nothing. Maybe there are examples I haven’t seen, but I’d think if they existed they’d have been the ones trumpeted in the headlines.
“Contrived” is entirely in the eye of the beholder. Smith may call the theories contrived. I call them one hell of a lot more plausible than some of those argued with a straight face by the Biden administration, and by the 0bama administration before it.
And that is a BS charge that was invented specifically to prosecute those involved, even peripherally, in the riot. At no point before Jan 7 2021 had anyone suggested or even imagined that that statute could be applied to such “interference”. When Congress passed it, and ever since until Jan 2021, it was understood to mean destroying evidence being sought by Congress, and nothing else.
Since the charge is BS, conspiracy to commit it is also BS.
Everything you say is true, Milhouse, and yet as long as the case gets to decision before the DC jury, that jury is almost 100% certain to convict.
Trump could be indicted for “picking his feet in Poughkeepsie” (hat tip to the recently deceased William Friedkin), and a DC jury would still be certain to convict.
Yes, I’m surprised they didn’t charge Trump with the murder of Ashley Babbitt. An all-Democrat jury would rubber-stamp anything against Bad Orange Man.
I would love to see the prick who murdered Ashley in the news, having had a terrible fatal accident.
When you can be indicted for saying there is election fraud, there is election fraud.
“Mr. Smith’s indictment outlines a factually compelling”
And herein lies the great weakness of Legal Insurrection, the contributors here cannot quite bring themselves to say the obvious, that these charges are complete and utter fucking bullshit.
Instead we get this never ending stream of bollocks that continues to treat these charges as the rational output of the DoJ totally not corrupted by political bias against the enemies of the State.
The contributors here keep treating these charges as something rational when they should be screaming from the rooftops at the political bias and deliberate weaponisation of the Government who’s sole task, it appears, to find the enemies of Democrats guilty of anything.
So you can keep going to sources that tell you what you want to hear and bitch and moan about unfairness. We try to give readers realistic assessments of where legal issues are heading, whether they like to hear it or not.
A realistic assessment of what??? The realistic assessment you should be making is that these charges are nothing more than the out put of a thoroughly corrupted DoJ who goes after their political enemies with the full force of a weaponised federal Government.
What we get instead is a never ending parade of articles that treats these indictments as if they are happening in a sane, rational world 🙄
https://youtu.be/8WS6-9ieMMY
I’m this 15 minutes is probably more useful analysts of what’s going on that has been posted by the contributors to LI.
It really shouldn’t be this hard for you guys to provide better coverage of what’s going on with these indictments.
The J6 riots stopped the count in the House. Technically speaking, yes.
But you are forgetting a crucial point. The House was convened to certify the election but the rules of the House were still in effect, and that included making motions by House members. At that time, it appeared to be a miracle win by a senile candidate who didn’t campaign, yet still managed to get the most votes in history despite the incumbent receiving 11 million more votes in his reelection race. Even more remarkable was how he pulled out a victory from behind after the polls were shut down at 10:00 pm in six states who then proceeded to count after throwing out the poll watchers (by police force) and then blocking the windows of the counting rooms.
So… against this backdrop there were House members who were ready to bring a motion to the floor on Jan 6 to delay the certifications to give state legislature the opportunity to take a second look at the ballots. This act alone by any House member would give any legislator (House or state) the legal standing to challenge any ballot counts and present evidence of fraud. Moreover, it would have given Republican legislators the courage to actually take a stand and revisit the count or even to slate alternate electors… who knows.
Democrats in no way wanted any House member(s) from bringing that motion to delay the count to the House floor. But they can’t stop it because of the House rules.
However, there is one loophole: an Emergency Session of congress. In that session only one order of business may be debated and that would be the certification of the vote. No motions allowed.
But how…how can the House go into emergency session? Why if the chamber is evacuated in an emergency. Say a riot… insurrection? Sure, absolutely. But what are the odds of that ever happening???
Sounds awefully conspiratorial of you George. One should be careful of uttering such careless thoughts out loud in case one’s online presence is suddenly made to disappear 🤔
You explained perfectly why there were so many FBI assets in the J6 crowd, and why they instigated the riot.
And if the riot failed to stop them there was a bomb threat that was looming in the background.
We are not voting our way out of this
Guns, Burner Phones and Fake Registrations – The Buried Michigan Voter Fraud Scandal: GBI Strategies Director Gary Bell Had 70 Organizations Operating in 20 States in 2020 – TIED TO JOE BIDEN CAMPAIGN
https://www.thegatewaypundit.com/2023/08/muskegon-voter-fraud-scandal-gbi-strategies-director-gary/
There was also voter fraud in Detroit, 2 black women running ballots through the night.
My comment on these charges is that the indictment alone is proof beyond a reasonable doubt of a crime in a Washington D.C. court if the crime is committed by a Republican and especially by Trump. And with the Judge in this case, Trump’s Legal Team will not be allowed to put on a defense. Look at what this judge has done to the J6 political prisoners that have come through her court. I wouldn’t put it past her to sentence President Trump to immediate hanging on the steps of the U.S. Capitol.
Good to see Milly back and I think we are all in agreement that this indictment is ridiculous, no matter whether you are pro Trump 24 or not.
My recollection is that the riot didn’t delay the counting of the votes; it suspended the challenge that was going to be raised in the Senate. Had the potential 6 hours of debate been held, and the challenge failed, the counting would have taken place no sooner than it actually did. When the Senate re-convened the challenge was a dead letter.
In real terms, no counting was obstructed or delayed. Instead, the challenges were successfully killed without having been taken up. This is a problem I have had with J6 rhetoric from the beginning. It never seriously addressed the matter of “cui bono?” Trump’s last potential chances for challenge were destroyed by the riots. Promoting or provoking them was not in his interest.