Notes on an Historic Indictment

Yesterday the U.S. Department of Justice indicted former president Donald J. Trump on four felony accounts associated with his attempts to overturn the legitimate 2020 presidential election.  After watching the various investigations into his misconduct play out through two impeachments and alleged crimes in both federal and state jurisdictions over the past few years, the following observations come to mind.

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Special prosecutor Jack Smith’s 45-page indictment covers much territory already familiar to most Americans through the detailed work of the U.S. House of Representatives’ January 6 committee investigation, and through widespread and effective investigative journalism.  But the indictment introduces more evidence for the criminal charges than had previously been publicly known.  Still, here’s to the proof again of the indispensable role of a free press in defending democratic institutions.  This role is precisely why Trump has denigrated the “fake news” media since he descended on the escalator in Trump Tower in 2015 to announce his candidacy for president.  This is also why he envies–and admires–autocrats and dictators in other nations who have freed themselves from a free press.

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Despite what some pundits remain fond of saying, this case against Trump is NOT a complex case.  The law is clear, the four felony charges are straightforward, and the facts supporting them are voluminous.  As those paying attention already know, many of the damning facts issued from Trump’s own actions and statements in real time.  Of course, in our legal system criminal defendants are innocent until proven guilty in a court of law beyond a reasonable doubt.  But as in many serious criminal cases around the country, this indictment leaves no reasonable doubt as to the defendant’s behavior and its violation of criminal laws.  That’s why the vast majority of criminal cases nationwide result in guilty pleas rather than in trials.  In 90 percent of federal criminal cases, defendants plead guilty rather than go to trial.

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The evidence against the former president is even more damning because the vast majority of it–and of expected testimony against him in the trial to come–issues from Republican officials, from both the state and federal governments, including strong Trump political supporters in the 2020 election and Trump appointees to powerful government posts in Washington.  Vice President Mike Pence was hardly the only Republican office holder who held the line against Trump’s efforts to subvert the election, the law, and democracy.  There were many.

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Did Trump know that his assertions of a rigged election that he won “by a landslide” were lies, and does it matter?  The indictment discloses Trump statements–between the November 2022 election and after January 6, 2023–that show that at points he acknowledged that he had lost the election.  My own suspicion is that he wanders into and out of reality on this question.  But the indictment is clear on this key point:  Trump was repeatedly told by numerous advisors, top political appointees in the Justice Department and elsewhere in the federal government, by state officials, and by the more than 60 courts in which his people filed specious fraud challenges against the vote, that there was no fraud of any consequence in the 2020 election.  There is no question that he and his legal representatives repeatedly lied to state voting officials, to members of Congress, and to the public–and continue to do so.  In sum, the only legal defense that I can imagine for Trump is the insanity defense based on deep psychotic delusions.  He would not try this defense, and it would not succeed in any event.

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Will the trial occur and be resolved before the 2024 presidential election, in which it now appears Trump will again be the Republican nominee?  Legal experts vary in their estimates of this case’s future timeline.  But the special prosecutor has streamlined the indictment in the effort to ensure that the trial commences many months to a year prior to the election.  The indictment charges only Trump, and does not charge the several co-conspirators it describes (but does not name).  They will be indicted separately at a later time.  This indictment strategy avoids the complications that can arise in cases charging multiple defendants in the same case–for example, trial delays caused by multiple defense attorneys asking for different delays on various objections to evidentiary and other trial procedures.  This indictment also avoids the sorts of delays that can be expected in Jack Smith’s other criminal case against Trump in Florida–involving Trump’s illegal possession and use of confidential documents–delays associated with figuring out the handling of government secrets as evidence in the trial.  Because this new case is fairly straightforward on the facts and the law, I suspect it will come to a verdict before the election.  However, as the legal analysts have noted, even a conviction of Trump would not prevent him from standing for the presidential vote in November 2024.

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Today’s indictment silently underscores ongoing threats to American democracy sitting just off-stage.  Here I have in mind the numerous GOP leaders both in Congress and in many state governments who continue to support Trump in the face of the evidence of his pattern of political criminality.  Most of these leaders continue to embrace his lies about a stolen election, either by affirming them or by ignoring them.  Meanwhile, in a national poll in June almost 70 percent of Republican voters continue to believe that President Biden’s election was due to voter fraud, and in another poll two-thirds of them say they would vote for him even if he was convicted of a crime.  Moreover, even most of Trump’s Republican opponents for the 2024 presidential nomination have failed to challenge his lies about the last election, thereby allowing voters to continue to believe this Trumpian fantasy.  These beliefs and behaviors render the Republican Party inimical to the rule of law in the U.S., and to the American democracy based upon it.

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This political alignment cannot sustain our democracy.  It is not too much to say that the outcomes of the array of cases against Trump and his serial criminality will be pivotal in deciding our political fate in the years ahead.  If successful at law, they could help to reinvigorate our nation as the “City on a Hill,” as a beacon of freedom, rights and hope to the world.  Among other things, such results may help to begin a purge of the autocratic cancer that infects one of our two major parties.

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