The Big One
Bust out your champagne folks. Donald J. Trump’s “January 6th” indictment is here. I don’t want to waste any time since this will be chock full of details, but I will give you a quick outline. In this Jackal, we will cover:
All the technical crap about the indictment.
All the dumb arguments about how the indictment is weak.
The significance of the indictment itself.
Explain the indictment to me like I’m five years old.
I am uniquely qualified to do this, because I have successfully Benjamin Buttoned myself into understanding complex legal stuff even though I have the mind of a (drunk and illiterate) child. So let’s get to it.
Trump got hit with four counts by Special Counsel Jack Smith:
18 U.S.C. § 371 - Conspiracy to Defraud the United States (Count 1).
18 U.S.C. § 1512(k) - Conspiracy to Obstruct an Official Proceeding (Count 2).
18 U.S.C. §§ 1512(c)(2), 2 - Obstruction of and Attempt to Obstruct an Official proceeding (Count 3).
18 U.S.C. § 241 - Conspiracy Against Rights (Count 4).
To break this down even further, we can put each Count into plain language:
Count 1 is Trump’s use of the “fake electors” scheme to replace the legitimate electors after the 2020 Election.
Trump and his co-conspirators did this both through deceiving State officials and through propping up “alternative electors” (usually Republican officials in each State), who had declared for Trump in the 2020 election.
Trump also enlisted officials within the Department of Justice (DOJ) to assist him.
Counts 2 and 3 are kind of inter-related in that they are about Trump’s attempt to delay or stop the counting of the Electoral votes on January 6th, both through Vice-President Mike Pence and (once it became abundantly clear Pence would not play ball) the riot at the Capitol that day.
Count 4 is about how Trump’s actions - in addition to being electoral fraud - violated the rights of regular citizens who had voted in the 2020 election.
All in all, this is an indictment that sticks tightly to the facts and it lays out a clear pattern of Trump’s behavior, which is that he tried to overturn the election by any means available to him and when all of those failed, he hoped that the violence that ensued on January 6th would create enough chaos for him to remain in office.
From a technical standpoint, it may seem like it’s hard to charge Trump with these crimes simply because his actions are so unique. No sitting President has ever tried to “overturn the election by any means available to him,” and then, “hoped that the violence…would create enough chaos for him to remain in office.” (Like a third of this paragraph is a repeat of the previous one, which is embarrassing for me.)
But in reality, the statutes chosen by Smith are used by Federal prosecutors all the time. Count 4 has been used by the Federal government 78 times in just the last 20 years. In the DOJ’s resource manual on Count 1, it literally states (in its first line!) that § 371 is a “general conspiracy statute” which hits people for defrauding the United States “or any agency thereof in any manner or for any purpose” (my emphasis).
It is hard to see how Trump’s actions do not fall within that statute, rather than the opposite. To be clear, Trump:
Pressured State officials to resist certifying Joe Biden’s election win. When that didn’t work, he:
Created a scheme to submit an alternative slate of electors that could be “selected” by Mike Pence on January 6th. When that didn’t work, he:
Hoped that the January 6th riot would create enough chaos that he could use to pressure Pence (or others in Congress) to de-certify Biden’s victory.
So, while this won’t be a “traditional” indictment under these statutes, they are actually not particularly novel. Trump is facing broad conspiracy charges which - it should be noted - have actually been used against his fellow insurrectionists on January 6th.
Also, Smith has created a more narrow and clever case that will be easier to prove than I think some on the Right are assuming. An example of this is Smith’s reluctance to charge Trump with incitement for the speech he gave on January 6th.
Some were disappointed by this, but incitement is a very difficult thing to prove thanks to the heavy protections given to political speech. But Smith uses Trump’s words repeatedly in the indictment, as well as his “tweets” from that day.
In other words, Smith uses Trump’s words against him to strengthen the other charges laid out in the indictment (more on this below). It’s something smart prosecutors do and Smith is a smart prosecutor.
Does Trump have a defense?
Over the past few days, we have seen three major arguments emerge from Trump’s camp/conservative media about his defense in this particular indictment. Let’s tackle them one by one.
Argument 1: Trump was simply engaging in free speech.
Inarguably (get it?), this is the weakest of Trump’s three defenses. There are all kinds of protected speech in America, and political speech is one of them. But Trump was not indicted for speaking his mind about the election. In fact, here is Smith:
But Smith then quickly notes that Trump pursued illegal action afterwards, and then literally says he is indicting Trump for those actions. Trump’s speech actually has nothing to do with it. Put it this way: As the recent Dominion lawsuit against Fox News showed, you can lie about the election results as much as you want and not be criminally charged for it (you just might have to pay some company you defamed a huge fee).
Argument 2: Trump really believed he won the election.
This is a stronger argument, but it’s still not great. For one, there is evidence in the indictment that demonstrates Trump’s knowledge of his election loss. Here is a much-discussed line in the indictment:
Trump getting exasperated with Pence and telling him that he’s “too honest” is a huge tell. And here is the other thing: This will not be the only evidence Smith produces that speaks to Trump’s state of mind.
Throughout the indictment, Smith states that Trump made false statements that “he knew” were false. Trump’s state of mind has very much been on the forefront of Smith’s own mind, and he will be producing witness testimony from people (like Pence) who will testify directly about hints that Trump knew he lost.
However, there are still two reasons why this argument doesn’t work. For one, “willful blindness” is a concept in law that basically argues your “true beliefs” can only take you so far.
For another, Trump’s personal belief about the election really doesn’t matter. From Ryan Goodman and Barbara McQuade last year:
It is also immaterial what was in Trump’s head regarding the outcome of the election when he participated in the audacious scheme to falsify alternate slates of electors and get them to Congress to gum up the certification of the election. “President Trump and his campaign were directly involved in advancing and coordinating the plot to replace legitimate Biden electors with fake electors not chosen by the voters,” Rep. Adam B. Schiff (D-Calif.), a member of the select committee, said at Tuesday’s hearing. The evidence provided by witnesses at the hearing backed that up. Arizona House Speaker Russell “Rusty” Bowers (R) testified that Trump and his lawyers repeatedly asked him to remove legitimate electors for Biden and substitute an illegitimate Trump slate. That testimony was supported by additional video testimony from Trump allies including White House and campaign aides and Ronna McDaniel, chair of the Republican National Committee. At Thursday’s hearing, top Trump Justice Department officials testified about Trump’s efforts to promote Jeffrey Clark to attorney general after they refused to sign his draft letter to Georgia election officials advancing the alternate-electors scheme.
Think of it this way: Years after his trial for Nicole Brown Simpson’s murder, O.J. Simpson was convicted of armed robbery and kidnapping. However, Simpson broke into the hotel/casino because he believed they had stolen some of his belongings. So, he went in there and tried to take his stuff back.
It doesn’t matter that O.J. (wrongly) believed that the stuff was actually his. He still broke the law. It isn’t perfectly analogous to the Trump scenario (where mens rea does play a role), but it captures the rebuttal pretty well. Trump’s beliefs about the election being stolen would explain his motive for trying to overthrow the results, but his true intent was to stop Biden from becoming President of the United States. That is the illegal part.
Argument 3: Trump was just listening to his lawyers.
This is Trump’s best argument, but (again) that still doesn’t make it particularly strong. We already know that it is possible Trump’s lawyers also engaged in illegal activity. It feels like a million years ago, but a judge previously ruled that it was “more likely than not” that Trump and his attorney - John Eastman - were engaged in a crime, and thus the normal “attorney-client privilege” didn’t apply.
This is actually a good spot to go over who the other co-conspirators are in the indictment:
Co-conspirator 1 is Rudy Giuliani.
Co-conspirator 2 is John Eastman.
Co-conspirator 3 is Sidney Powell.
Co-conspirator 4 is Jeffrey Clark.
Co-conspirator 5 is Kenneth Chesebro.
Co-conspirator 6 is still a mystery, but lots of people think it is Boris Epshteyn.
All of these people are lawyers or were at the time (Giuliani is basically disbarred). If they are on the hook for some of the things in Trump’s own indictment (and none of them should be sleeping well), then it’s safe to say that him following their advice is a poor defense. Walter White would not have been able to make an argument in court that he was simply following the advice of Saul Goodman.
This is also a poor argument because there were a number of other attorneys - particularly in the DOJ - that repeatedly advised Trump that his scheme was illegal and Trump (obviously) ignored their advice. In short, his best argument is still pretty weak.
It sure feels good to see this guy held accountable.
The reason I titled this Jackal “The Big One” is because this indictment feels like the one that was needed most. I don’t want to downplay the seriousness of mishandling classified material, or falsifying business records, but what Trump did after the 2020 election always required some sort of accountability.
If you are a longtime reader of the Jackal, you will know that immediately following the 2020 election, I did not think Trump would be indicted for things he did in office, like obstruction of justice, or for the hush money payments to Michael Cohen. But I did say this:
I want to clarify: A prediction of what I think will happen is not outlining what I think should happen. Prosecuting Trump for his many crimes committed in office, on the campaign trail, and in his private capacity as a citizen may actually be necessary to preserve some sort of respect for the rule of law.
After January 6th, my entire thinking changed. It felt like any failure to hold him to account for his actions that day would leave the rest of the country despondent and push cynicism over the edge.
Throughout 2021, Trump was mostly out of the spotlight, but he still lingered in the political atmosphere, like Sauron with orange skin and a B.M.I. of 38. It never felt like he would stay in the Shadow, and that we would eventually have to deal with him one way or another (you can thank Republican Senators for that). In many ways, Jack Smith is doing the dirty work none of us were ready to do. This tweet stood out to me:
If you know me personally, you know I am very much given to hyperbole and that I say ridiculous things. I make jokes about how I want to uproot my family to Las Vegas so that I can gamble every day (I love gambling). I often make jokes every morning about how much booger sugar I snorted the night before (I have never done cocaine). I tell people Starship Troopers is my favorite movie (it is). I have both the mind of a child - as stated above - and the sense of humor of a child.
But when I write about legal stuff that is serious, I don’t do hyperbole and I try to be as measured as possible. With that in mind, I think it’s important to say this: We can see now through the details laid out in this indictment and through the January 6th Committee’s findings that Donald Trump was very much trying to become America’s first dictator on January 6th.
There is a part of this indictment that I really cannot get out of my head, and it was completely new information to us:
That is Jeffrey Clark - a DOJ official - saying that Trump’s plan was to remain in office despite the fact that there was no way Biden lost the election, and when Clark is told that if Trump does not leave there will be riots in the streets, Clark essentially says the Federal government will put those protests down by using force.
That still sends chills down my spine. To be clear, I do not think democracy was truly under threat that day. I don’t think Mike Pence, or Mitch McConnell, or the majority of Republican Senators were ever going to side with the coup. In fact, I think even if Mike Pence had done what Trump asked, Biden would have still been sworn in on January 20, 2021. And I really don’t think the military would have just sided with Trump.
But there was a real potential for additional violence both on January 6th and afterwards, and we are truly lucky that we avoided it. Most importantly: I do not think Trump will make the same mistakes the next time around. He will not go to Mike Pence or to people who do not agree with him. Next time, he will have every sycophant where they need to be so he can stay in office. In the words of his own Attorney General, Trump’s actions after the election show that he has no business being anywhere near the White House.
Should-Reads:
Ken White debunks National Review’s (pretty sad) defense of Trump.
Noah Rothman dissents from National Review’s op-ed.
This Jackal from last year is fun to revisit, in light of Trump’s indictment.
That is it from me. As a reminder, the Jackal takes a lighter schedule in August every year. But I will write something for you to chew on before September starts back up, and it will probably be about COVID-19 (remember that thing?)
Enjoy the weekend.