On the January 6th Indictment

Just after the United States Senate failed to convict Donald Trump for his efforts to overturn the 2020 election and bring American democracy to a crashing halt, Minority Leader Mitch McConnell explained his vote to acquit thusly:

He didn’t get away with anything yet — yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.

Two and a half years later, the criminal justice system has partially validated McConnell’s words. Granted, I still would have preferred a Senate conviction. Unlike the Senate, the criminal justice system can’t force Trump never to run for president again. Still, the indictment of Trump is a vital and necessary attempt to hold him accountable for his actions.

Not Criminalizing Speech

So far, critics of the indictment have largely focused on the notion that convicting Trump would criminalize speech. National Review Online has already seized upon this (though not unanimously). Hugh Hewitt went into five-alarm fire mode. Perhaps if they had read the indictment, they’d have noticed this in paragraph 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.

So Jack Smith isn’t indicting anyone for lying – not even the Big Lie.

Criminalizing Crime

So what is Smith indicting Trump for? What anyone gets indicted for: violating the laws. To be clear, not every indictment makes sense or is worthy. This one, however, certainly is.

This indictment details specifically how Trump was told – over and over again – that his claims of fraud were false and that he lost the election. He tried to overturn it nonetheless. For example, he …

… organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws.

He tried to encourage Mike Pence to violate the Electoral Count Act and reject legitimate electoral votes.

Finally, of course, there was January 6 itself, which Trump’s defenders (and attackers of his critics) would have us believe was utterly inconsequential. Not only is that not true, Smith shows that Trump tried to use it to stop the Congressional count of the electoral votes (emphasis added).

Upon receiving news that individuals had breached the Capitol, the Defendant’s advisors told him that there was a riot there and that rioters had breached the building. When Upon receiving news that individuals had breached the Capitol, the Defendant’s advisors told him that there was a riot there and that rioters had breached the building. When advisors urged the Defendant to issue a calming message aimed at the rioters, the Defendant refused, instead repeatedly remarking that the people at the Capitol were angry because the election had been stolen.

At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

Having basically given the violent mob justification to keep going. Trump and his cohorts used the chaos to lobby members of Congress for further delays. One of them (John Eastman, co-conspirator 2) admitted it would be a violation of the law.

“You’re Too Honest”

After Pence refused to support the slow-motion coup, Trump dropped all pretension of truth (emphasis added).

On January 1, the Defendant called the Vice President and berated him because he had learned that the Vice President had opposed a lawsuit seeking a judicial decision that, at the certification, the Vice President had the authority to reject or return votes to the states under the Constitution. The Vice President responded that he thought there was no constitutional basis for such authority and that it was improper. In response, the Defendant told the Vice President, “You’re too honest.” Within hours of the conversation, the Defendant reminded his supporters

Read that again: “You’re too honest.” Does anyone who thinks he is the rightful election winner and a victim of fraud say that? The question practically answers itself.

This is not an indictment to criminalize speech. It is an indictment to criminalize actions that broke law. It would criminalize crime.

Republicans and conservatives who defend Trump against this indictment do so at great peril to themselves and to the nation. We cannot survive much longer as a democracy if we condone attempts to reverse elections falsely just for personal ambitions.