Yesterday was a momentous day in American history. A former President was charged with the crimes of conspiracy to overturn the election that ousted him. We watched the events of January 6, 2021, unfold on national television. We did not know all the details of the conspiracy, which happened in secrecy. But independent counsel Jack Smith interviewed people who were in those secret sessions. Some of them blabbed.
Robert Hubbell summed up the dramatic events of last night. Open the link and keep reading.
Hubbell writes:
At 7:14 PM EDT on August 1, 2023, special counsel Jack Smith strode to a lectern in Washington, D.C., opened a folder, and said, "Today, an indictment was unsealed . . . ." With those plain words, Jack Smith announced the most remarkable legal proceeding in the history of our nation. The indictment (US v. Trump) alleges that a former president of the United States attempted to prevent the peaceful transfer of power between presidents—the hallmark of American democracy.
Smith cut to the quick of the indictment in his brief remarks, saying:
The attack on our nation's Capital on January 6, 2021, was an unprecedented assault on the seat of American democracy. It was fueled by lies, lies by the defendant.
And the indictment cuts to the quick of the injury inflicted by Trump: It alleges that Trump engaged in a conspiracy "against the right to vote and to have one's vote counted."
There it is: Trump attempted to deny the American people the right of self-determination. If that right is abrogated, a free people become vassals of an authoritarian state that exists to perpetuate itself rather than serve the people.
In its economy and focus, the indictment lays bare Trump's betrayal of the Constitution and the American people. In damning Trump with words of one syllable, it seeks to persuade the jury that will determine his guilt and the American people who will determine his fate.
The indictment is the product of deep strategic thinking. Jack Smith seeks a conviction before the 2024 presidential election. To increase the likelihood of that outcome, the indictment charges a single defendant—Donald Trump. The indictment alleges that Trump was assisted by six un-indicted co-conspirators—five attorneys and one political consultant who can (and will) be tried later.
In charging a broad conspiracy involving six un-indicted co-conspirators, Smith will be able to use the statements of the seven co-conspirators against one another. The indictment bristles with incriminating admissions and confessions of guilty knowledge by inept and clueless amateurs whose proximity to the presidency caused them to take leave their senses.
The indictment deftly seeks to hold Trump accountable for the violence on January 6th without assuming the burden of proving he incited the violence. Rather, the indictment alleges that Trump exploited the violence by using it as an excuse to justify the unlawful delay necessary for the false electors plot to succeed.
The indictment focuses on the false electors' plot, one of the most straightforward and easily provable elements of Trump's attempted coup. The indictment does not seek to hold Trump directly accountable for inciting the violence—a difficult proposition to prove.
On August 2, 2023, Americans who yearn for justice and accountability should feel buoyed by the powerful indictment against Trump. We have much to be grateful for, including the following:
- That Merrick Garland chose Jack Smith to prosecute Trump;
- That Jack Smith and his staff (attorneys and FBI agents) acted with the urgency and dispatch appropriate after an attempted coup—and before a threatened second coup.
- That former Speaker Nancy Pelosi had the foresight to proceed with a select committee to investigate the events of January 6th over objections from House Republicans.
- That the dedicated members of the House J6 Committee (and their staff) presented an overwhelming case of Trump's guilt to the American people.
- That state prosecutors and civil litigants in Georgia and New York pursued justice against Trump when it appeared that federal prosecutors temporized.
- That the men and women who defended the Capitol on January 6th were able to hold the line long enough for the coup plotters to lose their nerve. As Jack Smith said of the law enforcement officers who defended the Capitol, "They are patriots and they are the best of us."
The indictment is momentous. It should speak for itself and deserves to be read in full by you. Indeed, it is your civic duty to do so. The indictment is here: US v. Trump. It is eminently readable. To whet your appetite, here is the introduction:
1. The Defendant, DONALD J. TRUMP, was the forty -fifth President of the United States and a candidate for re-election in 2020. The Defendant lost the 2020 presidential election.
2. Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3,2020, Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But Defendant repeated and widely disseminated them anyway to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.
3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.
Early analysis of the indictment by legal commentators.
We will spend months and years reviewing the indictment. The early analysis started to arrive on Tuesday evening. A good place to start is with the question of whether it is in the interest of the nation to prosecute a former president for resisting the peaceful transfer of power. It is. See Ruth Marcus op-ed in WaPo, Prosecuting Trump is perilous. Ignoring his conduct would be worse. Marcus writes,
There is a reasonable argument to be made that Trump is already facing criminal charges for his behavior in other matters and proceeding against him on the suite of election-related offenses is unwise and unnecessary.
I disagree, and reading Tuesday's indictment bolsters that conviction. The Mar-a-Lago indictment charges a separate set of crimes: illegal retention of national defense information and obstruction of justice. These are serious allegations, but to say that their existence obviates the need to prosecute Trump for his efforts to prevent the peaceful transfer of power is akin to arguing that it is not essential to bring murder charges if the putative defendant is already accused of armed robbery.
Prosecuting Trump on these charges is a grave, even perilous, step. Condoning his behavior by ignoring it would be far worse.
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