Yesterday it filled my progressive heart with joy when I heard that Donald Trump had been indicted by the Justice Department on four counts related to his attempt to steal the 2020 election after Joe Biden was lawfully elected: three of conspiracy and one of obstruction.
You can read the eminently readable 45 page indictment via this PDF file.
Download Trump Indictment file
Today it was amusing to hear the laughable defenses trotted out by Trump's attorneys for why their client is innocent of the charges. Those defenses are so weak, Trump might as well plead guilty tomorrow at his arraignment, since his chances of being acquitted are extremely low.
The main argument being made on Trump's behalf is that he was simply exercising his First Amendment right to free speech when he questioned the validity of Biden's presidential victory. As competent attorneys have been saying, that's an argument for the Court of Public Opinion, not for a Court of Law.
The indictment acknowledges that Trump was entitled to his free speech. Here's what was said on page 2.
The Defendant 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. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.
But the indictment goes on to say: (the "1" is an artifact of copying in text from the PDF file)
Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies:
A conspiracy to defraud the United States by 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, in violation of 18 U.S.C. § 371;
A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election arecounted and certified (“the certification proceeding”), in violation of 18 U.S.C. § 1512(k); and
c. A conspiracy against the right to vote and to have one’s vote counted, in violation of 18 U.S.C. § 241.
Each of these conspiracies—which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud—targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election (“the federal government function").
Ruth Marcus demolishes the free speech argument in a Washington Post opinion piece, "The Trump indictment tramples no one's First Amendment rights." If that link doesn't work for you, here's a PDF file, along with an excerpt.
Download Opinion | The Jan. 6 indictment doesn't trample Trump's First Amendment rights - The Washington Post
But Trump is not being prosecuted for his repeated lies about a stolen election. He is being prosecuted for the efforts he made, the actions he took to operationalize that contention and prevent the clear will of the voters from being realized, or what the indictment calls “unlawful means of discounting legitimate votes and subverting the election results.”
Just because words are involved in the commission of these alleged crimes does not mean that prosecuting Trump violates his First Amendment rights. The protections of the First Amendment are strong and capacious, but they are not unlimited.
Corporate executives accused of defrauding investors by making false statements engage in speech, but that does not immunize them. Same for those who engage in insider trading or a conspiracy to fix prices.
Or, to bring things closer to home, if Trump at a rally encouraged his supporters to beat up a protester, that would not prevent him from being sued or even criminally charged. If he were to falsely accuse a political opponent of being a child molester, the libel laws that he wants to weaken would not shield him from legal recourse. (Here, I am borrowing examples from U.S. District Judge Amit Mehta, ruling in a civil case that Trump could be sued for inciting the Capitol rioters.)
“The heart of our jurisprudence with respect to the First Amendment is the difference between regulating speech and regulating conduct,” Rep. Jamie B. Raskin (D-Md.), once a constitutional law professor, told me. “Everything charged in the indictment involves criminal conduct by Donald Trump and not the mere expression of political views. If Donald Trump wanted to say that the joint session organizing the peaceful transfer of power was a fraud and a charade, he had every right to say that. But he had no right to actually obstruct the proceeding.”
Thus, the indictment doesn’t accuse Trump of breaking the law by claiming the election was stolen. It asserts, instead, that Trump, “on the pretext of baseless fraud claims,” pushed state officials to ignore the popular vote; that he organized “fraudulent slates of electors,” including some who were “tricked into participating,” and that and his co-conspirators “used knowingly false claims of election fraud” to pressure the vice president to refuse to certify the election results.
What Marcus says above also demolishes an equally weak argument by defenders of Trump: that he was the victim of bad advice offered by his legal advisers. Today's All In With Chris Hayes show on MSNBC featured legal analysts who made this important point.
John Eastman, a Trump legal adviser, wouldn't have been an unindicted co-conspirator in the indictment if he had simply said that it made sense to have alternate slates of electors in several battleground states where the vote between Biden and Trump was very close, but Biden had been declared the victor.
That way, if a court or a recount established that Trump actually won a state, the alternate slate of electors for Trump could have been legally substituted for the Biden slate of electors.
However, when that legal approach morphed into an illegal scheme to have Vice-President Pence declare that Biden's electors were invalid and the alternate Trump electors should be substituted for them, even though there was no legal basis for doing this, that is when a conspiracy to defraud the United States government and voters took place.
So it looks extremely likely that Trump will be found guilty of the charges in the indictment. Of course, he's entitled to a vigorous defense when the case goes to trial. Trump had just better hope that his attorneys have better arguments than what they've shown so far. Even Bill Barr, his attorney general, agrees.