Donald Trump Faces His Day of Reckoning, At Last

Aug 4

Two and a half years after Donald Trump inspired a vicious attack on Congress, the Department of Justice has finally indicted the former president for his sustained, criminal efforts to overturn the 2020 election. This indictment is the Big One for Trump; in a normal country, it would end his political career.

The indictment, well-crafted and focused, lays out a damning case against Trump. Special Counsel Jack Smith and his team made some astute decisions that increase the chances of convicting Trump and might streamline the trial process.

But here’s the rub: the case might not come to trial before the 2024 presidential election is held, and Trump could be re-elected. If that happened, Trump would probably order his Attorney General to dismiss the charges, having picked a spineless lackey for that role in his second administration. Alternatively Trump might try to pardon himself, whether or not he had the power to do so. There is no precedent on that issue.

Nonetheless, the indictment is a critical step in the fight to save our democracy, because it affirms that a president is not above the law. In addition, Trump could still be tried before the election, and he would face a high risk of being convicted and imprisoned.

And in the all-important court of public opinion, this indictment could be the last straw for the 25% of Republicans who do not worship Trump, as well as for undecided independent voters who lean Republican. If they decide not to vote for Trump, that could help Joe Biden win a second term.

Conspiring To Overturn the Election

The indictment accuses Trump and six unnamed co-conspirators of forming a conspiracy to:

“overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted and certified” (emphasis added)

The indictment charges Trump and his associates with engaging in:

A conspiracy to defraud the United States, by using dishonesty and deceit to impair and obstruct the federal government function of collecting, counting, and certifying the results of the Presidential election.
A conspiracy to obstruct and impede the January 6 congressional proceedings to count and certify the election results.
A conspiracy against the right to vote and to have one’s vote counted.

Smith and his team focused on Trump’s principal efforts to hold onto power:

In seven highly contested states Trump and his associates tried to cast aside the Presidential electors selected by voters. They asked state legislators to approve alternate slates of electors, which they had handpicked, and attempted to submit their fake slates to Congress.
Trump and his associates tried to pressure election officials—most notably the Georgia Secretary of State--to change vote tallies and even to “find” nonexistent votes.
Trump and his team sought to stop Congress from counting and certifying the legitimate electors’ ballots on January 6.

The former president and his allies aimed to disenfranchise millions of voters, as they fought to stay in power despite losing the election.

Undercutting A “Free Speech” Defense

Trump’s attorneys plan to defend his conduct by arguing that the former president was merely exercising his right to free speech when he claimed that the 2020 election results were fraudulent. They may also seek to justify his behavior by claiming that Trump genuinely believed that the election was “stolen”. Trump’s legal team may claim that he did not commit any crimes, because he believed his own lies or because he relied on advice from some of his lawyers that the election was fraudulent.

The indictment anticipates and vitiates both arguments.

The DOJ concedes, in the third paragraph, that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely that there had been outcome-determinative fraud during the election and that he had won.”

The indictment also acknowledges that Trump was entitled to challenge the election through “lawful and appropriate means”, such as by seeking recounts or audits of the popular vote or filing lawsuits to challenge the ballots and procedures.

But Trump’s efforts to change the outcome were “uniformly unsuccessful”, the DOJ emphasizes in the indictment, noting that every court rejected his allegations of fraud. Trump did exercise his right to free speech… but his lawful challenges to the election results failed. After that, Trump turned to illegal efforts and launched the three criminal conspiracies.

Lies, Lies and More Lies…

The indictment further undercuts Trump’s free speech defense by citing multiple instances in which White House lawyers and his advisors told the president that his claims of election fraud were not justified.

The indictment highlights Trump’s utter disregard for the truth, which is also relevant to determining his intentions. For example, Mike Pence told Trump several times that, as Vice President, he did not have the authority to refuse to certify the election results on January 6. Trump’s White House Counsel and Pence’s counsel told the president that they agreed with Pence. Yet Trump continued to claim on social media that Pence could prevent the election from being certified on January 6.

Demonstrating Trump’s Criminal Intent

The DOJ has made a very strong case that Trump had the criminal intent to carry out the conspiracies. As the indictment emphasizes, White House attorneys consistently told Trump that he had no grounds for challenging the popular vote counts or slates of electors or for preventing Congress from certifying the election. Since Trump knew that his allegations of election fraud were bogus, he “knowingly made false claims of election fraud.”

Trump’s attorneys will try to defend him by saying that he relied on the likes of Rudy Giuliani and John Eastman, rather than his White House advisers, in forming his opinions. But Giuliani, Eastman and other unofficial advisers were roundly discredited at the time. Eastman was proposing fringe legal theories that Trump’s government lawyers rejected. Trump cannot justify his conduct simply by claiming to rely on an alternative reality that had no basis in fact.

Democracy or Dictatorship?

Attorney General Merrick Garland tried to avoid politicizing the investigation of Donald Trump, which was admirable, but because of his deliberate approach the trial may not take place until after the 2024 presidential race is decided. As a result, the next election involves very high stakes for Americans.

Sadly, many Republicans seem to have contempt for democratic values and procedures. Most Republicans choose to believe their leader’s lies, even though there is no evidence of fraud. About two-thirds still insist the 2020 election was stolen, despite Congress’ certifying the election and despite the January 6 Committee’s extensive hearings.

Here’s a simple reality check: all 50 Secretaries of State certified that the election results were fair and accurate. Over half of those officials were Republicans.

According to a recent New York Times/Siena College poll, 75% of Republicans think that Trump has not committed serious crimes. For 54% of Republican voters, Trump is their preferred candidate.

And here is an ominous result from the poll: a Biden-Trump match would be a toss-up, with each candidate garnering 43% of the vote. Donald Trump has a good shot at being reelected and fulfilling his promise to his followers that “I will be your retribution”. Trump has already vowed to direct the DOJ to investigate Joe Biden and his family if he wins reelection.

So, if you are among the 25% of Republicans who still have an open mind, cast a vote for democracy, by supporting Joe Biden.

If you are a Democrat, don’t waste your primary vote on Robert Kennedy or other fringe candidates. The stakes are too high for that kind of indulgence. Vote for Biden.

Because if Donald Trump becomes President again, we may not have to worry about election results anymore. Our remarkable experiment in democracy could end, replaced by a dictatorship.

The Wall Street Democrat

Ryan O’Connell