On the menu today: For the third time, a grand jury has turned in an indictment of Donald Trump, this time surrounding his statements and actions in the aftermath of the 2020 presidential election and leading up to the riot on Capitol Hill on January 6, 2021. But the mainstream-media coverage of the indictment is playing a few cautious notes, pointing out that special counsel Jack Smith’s theory of the case requires some unprecedented interpretations of the U.S. criminal code, and hinges upon proving that Trump knew he was spreading lies. This is leading a few regular critics of the former president to conclude that this is an effort to use criminal law to make up for the failure of Trump’s second impeachment.
Indictment Number Three
Until November 18, 2022, the U.S. Justice Department did not have a special counsel overseeing two ongoing criminal investigations that involved former president Donald Trump. On that day, Attorney General Merrick Garland announced that Jack Smith would head up the investigation “into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021,” as well as the investigation into the classified documents stored at Mar-a-Lago.
The optics of that appointment, and yesterday’s indictment, are bad. Almost two years had passed before Garland appointed a special counsel to investigate January 6, and he did so a week after Trump announced he was running for president against Biden, the man who appointed Garland to the position of the nation’s chief law-enforcement officer. Smith then turns in his indictment when Trump is now clearly the heavy front-runner to win the GOP nomination. The news also comes after the president’s son has gotten himself into serious hot water, with his generous plea deal on tax evasion and a gun charge unexpected falling apart. At the exact time that most Republicans have doubts about the Department of Justice’s willingness to prosecute crimes committed by prominent figures in the Democratic Party, the DOJ is bringing a third criminal indictment of the former Republican president.
It always seemed a little odd that so many people argued that what Donald Trump did between Election Day 2020 and January 6 ranked among the worst, most dangerous, most reckless, destructive, and unconstitutional actions of any president in American history . . . but that at no point did he commit a crime. The Heritage Foundation recently calculated that there are just under 5,200 federal crimes within the U.S. Code. We have federal laws that cover transporting dentures across state lines, knowingly giving a false weather report, writing a check for $1 or less, or the unlicensed use of Smokey Bear, Woodsy Owl, or their slogans, “Only you can prevent forest fires” and “Give a Hoot, Don’t Pollute,” for commercial purposes or for profit without government permission. (That last one can get you six months in prison!)
But nothing Trump did between Election Day and January 6 broke any federal laws, huh?
On the other hand, if you’re going to indict a former president, you want as close to a slam-dunk case as you can get, and you want the crime to be an act that anyone of any status would be indicted for in similar circumstances. You don’t want U.S. law enforcement dusting off some rarely used, long-forgotten statute and applying it in some way that it has never been applied before. One of the reasons so many people not on the right are wary about Manhattan DA Alvin Bragg’s indictment is because it applies the law to Trump in a way it has not been applied to anyone else ever before. And as David French wrote back in March, “‘Untested’ legal theories should not be used to prosecute anyone, including former presidents.”
As Andy McCarthy recently wrote:
It is a black-letter principle that criminal statutes must be sufficiently clear that a person of average intelligence can grasp exactly what conduct is forbidden. If prosecutors can make it up as they go along by gradually expanding the scope of criminal laws, then people cannot know what the law prohibits.
If you read deeply enough into today’s coverage, you can find correspondents noting that no, this indictment is not within normal parameters of enforcing the law. I don’t think these correspondents are preparing their readers for an acquittal so much as acknowledging that we’re in uncharted waters here, and there’s a chance that at some point down the road, a judge or jury concludes, “This meets the standard for selective or vindictive prosecution.”
This morning, Politico’s Playbook newsletter warns, “Because it is such an unprecedented set of accusations, it is equally unclear how these charges will hold up in court.”
The New York Times analysis by Peter Baker observes:
The question is whether the facts add up to crimes as alleged by a federal grand jury at Mr. Smith’s behest. Just as no president ever tried to reverse his defeat at the ballot box before, no prosecutor has brought charges for doing so, meaning there is no precedent for applying the statutes on the books to such a circumstance.
The Washington Post’s big story includes this passage:
Smith sought to navigate thorny issues of where the line should be drawn between political activity, legal advocacy and criminal conspiracy.
A key element of the investigation was determining to what degree Republican operatives, activists and elected officials — including Trump — understood that their claims of massive voter fraud were false at the time they were making them.
The whole case may boil down to whether or not prosecutors can prove that Trump knew what he was saying was false, as opposed to genuinely believing the lies he was telling were true.
“These claims were false, and the Defendant knew that they were false,” the indictment asserts. “In fact, the Defendant was notified repeatedly that his claims were untrue — often by the people on whom he relied for candid advice on important matters, and who were best positioned to know the facts — and he deliberately disregarded the truth.”
Now, from my perspective, the best defense for Trump is insanity, because he often asserts things that aren’t true and, as far as anyone can tell, absolutely, totally believes them. If you tell Trump something he wants to hear, he will completely embrace it as God’s honest truth, even if there is a mountain of counterevidence. And if you tell Trump something he doesn’t want to hear, and point to a mountain of supporting evidence, Trump will dismiss it because he read something different on the Internet or “lots of people are saying” the opposite. His top advisers telling him that two plus two equals four will not dissuade him from believing that two plus two equals five, if it is in his interests to believe that two plus two equals five. This is an extremely compelling reason to keep Trump out of the Oval Office, but not an extremely compelling reason to put him behind bars. Being delusional is not a crime.
One of the pieces of evidence that allegedly proves that Trump knew he was telling lies is that he told a military adviser during a briefing on January 3, “Yeah, you’re right, it’s too late for us. We’re going to give that to the next guy.” But Smith and prosecutors will have to prove that wasn’t a fleeting moment of doubt or a desire to kick the can down the road on that decision. Smith and his team will need to prove, beyond a reasonable doubt, that Trump knew the whole time that he had legitimately lost the election and there was no chance he would remain in office. A lot of this case depends upon the jury reaching a clear conclusion about what Trump was thinking and what he believed at particular times.
From this, it is not hard to see a whole bunch of usual critics of Donald Trump not liking the direction of this prosecution.
The editors of National Review argue that Trump’s actions were appalling and warranted impeachment, but that the Biden administration and Justice Department are now “attempting to use the criminal process as a do-over for a failed impeachment”:
In effect, Jack Smith is endeavoring to criminalize protected political speech and flimsy legal theories — when the Supreme Court has repeatedly admonished prosecutors to refrain from creative theories to stretch penal laws to reach misconduct that Congress has not made illegal. . . .
Criminal prosecution is an inapt substitute for the congressionally driven political process that the Constitution set up to address gross abuses of power.
Our Dan McLaughlin, writing in the New York Post, contends that the indictment blurs the line between the unethical and the illegal:
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.
Baker’s article in the Times casually notes, “The challenge for Mr. Trump will be different, especially with a jury selected from residents of Washington, a predominantly Democratic city where he won just 5 percent of the vote in 2020.” If the heavily Democratic and anti-Trump mentality of the juror pool is so self-evident that the Times doesn’t dispute it, it’s time for a change of venue for the trial. Why give Trump’s lawyers one more argument on which to base an appeal?
ADDENDUM: The New York Post often kindly quotes this newsletter in its daily op-ed and column-roundup section. I have noticed that it often uses “Gadfly” in the headlines quoting it, and I remain unable to determine if this is some sort of nickname for me, or whether it is spellcheck’s correction of “Geraghty.”
One definition of gadfly is, “a person who stimulates or annoys other people especially by persistent criticism.”