It Will Be Difficult To Refute the Pile of Facts
If you sift through the voluminous legal commentary about Donald Trump’s indictment on charges of scheming towards the events of January 6, 2021, you arrive at some simple conclusions that will make it legally difficult for Trump to refute.
First, Special Counsel Jack Smith appears to have been very careful and exhaustive in putting together a fact-filled indictment with charges that are achievable and that neatly stepped around any Constitutionally based questions. It will be difficult to refute the pile of facts outlined in in the timeline presented in the 45-page indictment.
Further, the evidence and testimony cited in the document are fully from former Trump advisers, in anticipation of argument that he believed that he had won the 2020 election.
Indeed, to argue, for example, that Trump did not know that he had lost the election – despite multiple cited excerpts from testimony from the very people who advised Trump daily — it would be necessary to put Trump on the witness stand. We all know that will not happen because it would make a constantly lying Trump in jeopardy of violating perjury laws under cross-examination.
Second, the Trump faithful immediately renewed the public, non-courtroom argument that the Justice Department – and other enforcement agencies pursuing Trump investigations – are “weaponized” against victim Trump and specifically that this indictment was an attempt to “criminalize free speech.”
The indictment addresses this issue as well, specifically saying (Introduction, point 3) that Trump, like every American, had and has a right to say what he will about elections and to challenge results in court, but that it is the actions he took that are at issue in the indictment.
Those are actions that the indictment describes as three conspiracies to defraud the United States, to obstruct an official government proceeding, the certification of the Electoral College vote, and a third to deprive people of a civil right to have their votes counted. Trump also was charged with obstructing or attempting to obstruct an official proceeding.
Outlining Possible Strategies
After the indictment was announced, Trump attorney John Lauro told Fox News’ Bret Baier that what lies ahead is “a criminal trial for Mr. Trump exercising his right to speech.”
Lauro’s comments laid open the probability that Trump will throw attorney John Eastman, who devised the plan to present alternative elector slates from several states, and Trump’s other attorneys, including Rudy Giuliani, under the nearest bus.
Lauro said he doesn’t believe the government has a strong case against Trump, adding that he “would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations (about election fraud) were false,” Lauro said.
On Fox, Newsmax and other right-leaning media, the commentary was swift and defensive of any indictment allegations, insisting that Trump merely took steps that he believed were about election rigging, and attacking the prosecutors. Jesse Watters, the network’s newly minted Tucker Carlson replacement argued that the charges were “overkill” and akin to “political war crimes,” warning of political tit for tat. Breitbart News noted that the indictment followed by one day new, inconclusive testimony about Joe Biden talking with various Hunter Biden’s business partners by phone at dinners.
In short, the Trump defense is political, not legal.
Despite the prospect of conviction and even a prison sentence, the Trump plan is to win the election and quash the prosecution, or for a Republican president to pardon him.
To convict Trump, prosecutors will have to persuade a unanimous jury, and even conviction undoubtably will result in appeals that will take this case beyond the next election.
There were some new revelatory facts in the indictment, but generally it followed the path laid out by the House Jan. 6 committee hearings and report.
Among new in the indictment: Trump briefly made Justice Department underling, Jeffrey Clark, acting attorney general on Jan. 3, 2021, before rescinding the appointment over a threat of mass resignations. To suggestions that riots might follow a Jan. 6 effort to subvert the peaceful transfer of power to Biden, Clark responded, “That’s why we have an Insurrection Act.” And there were previously unknown details of the conversations between Trump and Mike Pence, in which the vice president pushed back against Trump.
In the Indictment or Not
What the charges did not include were sedition or inciting to riot counts. From the legal commentary, prosecutor Smith was clever to sidestep those yet more serious charges because they could have drawn stronger legal defense about proof beyond reasonable doubt.
The indictment makes no reference to the planning and financing of Trump’s Jan. 6 rally, for example. It omits evidence of Trump’s serious consideration of a plan to use federal or military power to seize voting machines. It includes no allegations of links between Trump and the extremist groups who attacked the Capitol or references to others featured by the Jan. 6 committee as key players, like Roger Stone, Steve Bannon, and Alex Jones.
The civil rights charge was brought under a statute that dates to 1870 to prosecute the Ku Klux Klan and white supremacy efforts. The indictment alleges that Trump and others violated the statute in their plot to “injure, oppress, threaten, and intimidate one or more persons in their free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States — that is, the right to vote and to have one’s vote counted.”
It is possible that a legal defense could attack the use of that law.
Likewise, the charge about defrauding the country accused Trump of using “dishonesty, fraud and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted and certified by the federal government.” This is the same statute that’s been used to secure convictions against many of the Trump supporters who invaded the US Capitol on Jan. 6.
The overwhelming majority of judges who’ve heard Jan. 6 cases concluded that this prohibition on obstructing an official proceeding applies to those Jan. 6 defendants at the Capitol. Two Trump-appointed judges disagreed, finding it too broad. It is possible that a defense argument would be to challenge the law, but it seems a long shot.
For an unprecedented legal situation, we seem to have arguments that are distinctly non-legal as the major defense. The real question – as all commentary suggests – is whether the trial actually will take place.