I’ve been traveling since Monday night, so I haven’t had much time to comment here on the DC Trump indictment.
I was able to do an interview with Melina Wisecup on NTD yesterday from my hotel room with my initial impressions. As more comes out, my views may change, but for now, most of what is alleged appears to target constitutionally protected speech.
The indictment may make out a persuasive case that Trump lied in the post-election period about election fraud, and disregarded the warnings of his most trusted and most loyal confidants that what he was saying was not true, but that doesn’t equate to a crime. The core of the alleged crime is disruption of the electoral count, but that took place because of the riot, and Trump has not been indicted (yet) for inciting the riot. What the indictment purports to prove may be a reason not to vote for Trump, but it’s far from clear it’s a reason to criminally charge him.
Melina Wisecup (00:00):
And now let’s assess the legal ramifications of this latest indictment. We have Professor William Jacobson from Cornell Law School to discuss what the four charges against Trump actually mean and what kind of evidence is needed to prove them. Alright, William, thank you so much for joining me today to discuss this very important topic. I want to ask you about the specific charges. We know there’s four felony charges, three of those four are conspiracy charges. So from your perspective, what kind of evidence is needed to prove those conspiracy charges? And then are those more difficult charges to prove?
WAJ (00:35):
What you’re going to need is you’re going to need evidence that they were intending to commit a crime. There is no crime of just conspiring. You can conspire to do something lawful. That’s not a crime. It’s what were they conspiring to do. And once you prove a conspiracy and once you prove that someone was a participant in it, then it opens up the evidence fairly widely as to what comes into evidence. Anything that was done to further the conspiracy could be used against you.
Wisecup (01:04):
So what kind of evidence do you think that prosecutors will be looking at in Trump’s case?
WAJ (01:08):
Based on the indictment, they claim to have text messages, phone conversations, emails, testimony presumably from people who were involved, testimony that’s been taken. So they claim to have that. And of course an indictment are just allegations. They’ve actually have to prove them. But that’s what they say they have. They say they have all of this electronic and testimonial evidence to use against Trump.
Wisecup (01:34):
Do you think, William, that this will be pretty bad for Trump? Do you think that they actually have that hard evidence and will be able to prove those conspiracy charges?
WAJ (01:44):
Well, you know, the federal government has been known not to be completely truthful in the past, but let’s go on the assumption they think they can prove these things, that the allegations were made in good faith. The question is, is there a crime here? That’s what I think a lot of people are questioning. A lot of what they’re complaining about, a lot of the indictment is constitutionally protected speech. For better or worse, politicians are allowed to lie. That’s not a crime. Maybe a reason not to vote for them, but it’s not a crime. So it’s not really clear what is the actual crime that was committed here. And that’s something a judge is going have to rule on.
Wisecup (02:23):
Oh, that’s an interesting perspective. I want to ask you also about the obstruction of Congress charge. Do you think that they have enough evidence to prove this, considering the fact that Trump wasn’t even going inside the Capitol building?
WAJ (02:36):
Well, I mean that’s the whole point. What was the disruption of Congress that took place? It was the riot. It wasn’t Trump talking to people in Georgia or making phone calls or going on TV. They don’t charge him with inciting the riot. And that’s a very key point.
A lot of people, and frankly my initial thought was when I saw the media reports, is he was being indicted for the January 6th riot, but he’s not, that’s actually not what the indictment says. The indictment says he was trying to obstruct things by convincing people to create fake certificates that there were electors and things like that. But that is, that’s I think a major defect in the indictment. I’m not saying the indictment’s going get thrown out, but my guess is that the prosecutors have the evidence, they claim they have, but it’s going be up to a judge and eventually a jury as to whether that’s actually a crime.
Wisecup (03:32):
What’s your message to those who genuinely believe? Because there are a lot of folks in America that genuinely believe that Trump did something wrong and he did incite this riot and he should be charged for this issue. What do you say to those people?
WAJ (03:46):
Well, I would say distinguish between political wrongs and criminal wrongs. It would be perfectly within someone’s right to say, I don’t like the fact that he was lying about these things. That’s a perfectly good reason not to vote for somebody. But that doesn’t mean it’s a crime. And I think the criminalization of politics is a very negative trend in our society.
Wisecup (04:11):
I think that’s a very insightful point, William, separate politics from fact. Last question for you. I want to ask about your perspective on the current ongoing Georgia case, where Trump is potentially going to have a fourth indictment. What do you think about that case that’s ongoing?
WAJ (04:26):
Georgia seems like it’s going to be something similar to DC. It’s going to be a conspiracy. It’s going to be a lot of bits and pieces. And the question’s goingto be, what is the conspiracy? What was the illegal thing he was trying to do? And that is not abundantly clear in Georgia.
There is that tape when he talks about finding new votes and finding more votes. But I think a reasonable interpretation of that is what he was, I’ve listened to the audio, what he was saying is, make sure all of the votes have been counted. Make sure there are none out there because we all know it’s not uncommon for days and sometimes weeks after an election for new votes to be found, doesn’t mean they’re illegal votes. So the question in Georgia is going to be, was he trying to get people to do something illegal or was he simply trying to persuade them that they hadn’t done their job well enough and they needed to do a better job of counting the votes? Telling a state official you need to do your job better is not illegal.
Wisecup (05:25):
Wow. Very clear and insightful perspective. We really appreciate your time, William. Great. Thanks so much.
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