Not everything that’s bad in politics is illegal – especially in a country that has the First Amendment. Joe Biden’s Department of Justice seems to have forgotten that. At least, that’s the conclusion to be drawn from the latest federal indictment of Donald Trump.
Jack Smith, the same federal special prosecutor who indicted Trump in Florida over the classified documents kept at Mar-a-Lago, has struck again. He charged Trump in D.C. with a conspiracy to defraud the federal government and obstruct federal proceedings. The legal theory of the indictment is that Trump tried to obstruct the peaceful counting of votes and to deprive Americans of their right to vote by overturning the election. It alleges six unindicted co-conspirators, apparently including Rudy Giuliani, election lawyer Sidney Powell, Justice Department lawyer Jeffrey Clark, and law professor John Eastman.
The indictment is based upon Trump’s efforts to get political actors such as state legislatures, the vice president, and Congress to throw out the results of the 2020 popular vote for president in states such as Georgia, Arizona, Pennsylvania, and Wisconsin. It includes schemes to name substitute slates of presidential electors, efforts (on Eastman’s dubious legal advice) to get Mike Pence to throw out state electors, and Trump’s incitement of the January 6 mob to menace Pence for not doing so.
Trump did a lot of unethical and dishonest things, and the Senate should have convicted him in his impeachment trial. Impeachment, as the British philosopher and Member of Parliament Edmund Burke argued, should be “tried before Statesmen and by Statesmen, upon solid principles of State morality.” But crimes are supposed to be about the law – which has to be plain enough to govern us all. No criminal charges like this have ever been brought before, and it is far from clear that any law was broken.
The indictment charges that Trump and his confederates lied to legislatures about the election being fraudulent. That’s bad – but presidents and governors lying to legislatures to get them to do things happens every day.
It charges that Trump spread lies to the public and smeared elections officials. That’s dirty politics, but it’s politics.
It charges that Trump got his electors to cast votes that would not be counted unless a court or some other government body recognized them, and tried to browbeat the Georgia secretary of state into deciding that the election included thousands of fraudulent votes. But in none of these cases was anyone deceived – the same legal problem that undermines Alvin Bragg’s indictment of Trump for lying to his own checkbook. The electors were doing what electors have done in the past when a state’s votes were still in dispute.
It charges that Trump promoted ridiculous theories of how the Constitution works. Joe Biden better hope you can’t go to jail for that.
It charges that Trump tried to get Clark to use the Justice Department to make bogus charges to intimidate the states. I wonder if Merrick Garland swallowed hard at seeing that called a crime.
It charges that Trump’s lies to the public led to the riot at the Capitol on January 6 by people who believed them. That’s true – but the Supreme Court since its 1969 decision in Brandenburg v. Ohio, has required direct incitement of “imminent lawless action” for a conviction. Brandenburg overturned the conviction of the leader of a Ku Klux Klan rally –a very bad person, but still protected by the First Amendment.
Finally, it charges that Trump signed a false verification in an election lawsuit. That, at least, could be a crime – but Smith hasn’t charged lying to a court as a separate crime. Why not?
Maybe Smith thinks there’s so many charges against Trump now that nobody should care about the details. But in a nation of laws, the rules matter. Even for Donald Trump.