DC Indictment “is long on alleging Trump’s deceit but very short on showing criminality”

DC Indictment “is long on alleging Trump’s deceit but very short on showing criminality”

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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