United States of America v. Donald J. Trump, August 1, 2023

Lies vs. crimes

Good evening. Today, an indictment was unsealed charging Donald J. Trump with conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. The indictment was issued by a grand jury of citizens here in the District of Columbia and sets forth the crimes charged in detail. I encourage everyone to read it in full.

— U.S. Department of Justice Special Counsel Jack Smith, 8/01/2023

The indictment’s first paragraph affirms that Trump lost the 2020 election. Its second paragraph describes the Defendant spreading lies that there had been “outcome-determinative fraud”—that is, fraud that would have changed the result—in the 2020 election, which he knew were false.

In the third paragraph, Mr. Smith acknowledged that the right to freedom of speech includes the right to tell lies:

3. 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 in 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.

These statements make very clear that this is not a First Amendment case. That hasn’t stopped MAGA Republicans from falsely alleging otherwise (and thus exploiting the many reporters following the “let’s report what both sides are saying without any critical analysis” framework).

Later paragraphs of the indictment elaborate on how the material harms caused by these lies transform them from protected speech into components of criminal acts. They include more details than the January 6 Committee hearings provided regarding Mr. Trump and his co-conspirators’ obstructive acts like sending false slates of electors to both Congress and the National Archives to contradict their states’ certified results. Investigation of that travesty is not over yet: the Washington Post reports that in recent days, federal prosecutors have issued a new raft of subpoenas about the false elector scheme in multiple states.

It is up to the rest of us to remind friends and family that this is not based on Trump’s thousands of lies, but his actions.

Another excuse Republicans are shopping around is that Trump was just following the advice of legal counsel (including those now named as co-conspirators). However, we know from the hearings of the January 6 Committee that both the White House Counsel and the then-Attorney General Bill Barr, had repeatedly confirmed to him that there was no evidence of outcome-determinative fraud in the election. We have also seen Republican colleagues of his quote him as being angry that he lost.

Six of his co-conspirators are described in paragraph 8, but they have not been indicted yet. The consensus is that his co-conspirators were not charged yet in order to protect the right to a speedy trial for both Defendant Trump and the Plaintiff, the United States of America. It’s unknown whether they will be charged at a future time.

The crimes in question

The United States of America v. Donald John Trump is about 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 are counted and certified ("the certification proceeding"), in violation of 18 U.S.C. § 1512(k); and
A conspiracy against the right to vote and to have one's vote counted, in violation of 18 U.S.C. § 241.

One unique element of this indictment is Count Four (page 45). This count applies a law sometimes referred to as the Ku Klux Klan Act, 18 U.S.C. § 241, to most of the allegations. “The allegations contained in paragraphs 1 through 4 and 8 through 123 of this Indictment are re-alleged and fully incorporated here by reference.”

Historian Carol Anderson described it this way in a recent interview with Democracy Now:

[The count] that really attracts me is the conspiracy against rights, which is the right to vote, because underlying the Big Lie was the big lie of voter fraud. And that big lie of voter fraud was targeted at communities, at cities that have sizable Black and minority populations, and it was trying to delegitimize the votes of those American citizens.

She also noted that the intimidation election workers Shaye Moss and Ruby Freeman in Georgia is

… the kind of terror that is reminiscent of what happened during Reconstruction that led to the KKK Act that Trump is charged with, because that kind of terror was the intimidation of Black people who were exercising their right to vote, the intimidation of Black people who believed that they were American citizens, the intimidation of Black people who were engaged in the electoral process.

Jack Smith had the ability to compel testimony from many more witnesses than the House Special Committee did, so we learned more details of how the insurrection of January 6 fit into the larger coup plot. What stood out was the Defendant’s co-conspirators’ acceptance that violence might ensue as a result of their efforts to overturn our electoral college votes.

Here are two examples:

¶ 81. On the afternoon of January 3, Co-Conspirator 4 spoke with a Deputy White House Counsel. The previous month, the Deputy White House Counsel had informed the Defendant that "there is no world, there is no option in which you do not leave the White House [o]n January 20th." Now, the same Deputy White House Counsel tried to dissuade Co-Conspirator 4 from assuming the role of Acting Attorney General. The Deputy White House Counsel reiterated to Co-Conspirator 4 that there had not been outcome-determinative fraud in the election and that if the Defendant remained in office nonetheless, there would be "riots in every major city in the United States." Co-Conspirator 4 responded, "Well, [Deputy White House Counsel], that's why there's an Insurrection Act."
¶ 94. Also on January 4, when Co-Conspirator 2 acknowledged to the Defendant's Senior Advisor that no court would support his proposal, the Senior Advisor told Co-Conspirator 2, "[Y]ou're going to cause riots in the streets." Co-Conspirator 2 responded that there had previously been points in the nation's history where violence was necessary to protect the republic. After that conversation, the Senior Advisor notified the Defendant that Co-Conspirator 2 had conceded that his plan was "not going to work."

Some commentators have suggested that the use of the Insurrection Act to suppress Americans’ protests over Trump stealing power was the fourth step in the plan.

Updates

Legal scholars and others have been calling for Trump’s trial to be televised for the good of the nation. Allison Gill, host of the “Jack” podcast, presents some solid legal footing in defense of doing so:

Televise the Trial: It’s the Law

There's a federal law on the books known as 18 U.S. Code § 3771(a)(3): Crime Victims' Rights, which states: "The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding."

There is also 18 U.S. Code § 3771(d)(2) which states Enforcement and Limitations where there are multiple crime victims: "In a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings."

Among other crimes, donald has been charged with 18 U.S. Code § 241: Conspiracy Against Rights: "DONALD J. TRUMP, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to injure, oppress, threaten, and intimidate one or more persons in the 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."

That means we are all victims of this crime, and since it's not practical to include us all in this court proceeding, the law says “the court shall fashion a reasonable procedure” to give effect to this chapter that does not unduly complicate or prolong the proceedings.

Televising the trial satisfies both aspects of the law.

Trump has attacked the prosecutor and a likely witness, Mike Pence, on social media since his arraignment. His first post was dramatic: “If you come after me, I come after you.” There was debate about his motivation for doing this, and whether it could be another means of delaying the proceedings. Once again, Allison GIll has provided a useful summary of what has happened since he made those posts:

DoJ files a motion for a protective order over discovery in the case, citing the threatening post. DoJ wants to ensure that witness names and testimony provided in discovery aren't used by Trump to intimidate or threaten witnesses.
Judge Chutkan orders Trump to respond to DoJ by Monday, August 7 at 5 PM ET. Trump files a motion asking for MORE TIME - until August 10th - to respond to DoJ, and asks for a hearing about it. All the while, Trump's lawyer is scheduled to appear on a bunch of news outlets over the weekend, so do they REALLY need more time? DoJ filed an opposition to Trump's request for more time saying "in the time it took you to file a motion for more time, you could have just responded to our short motion" (I'm paraphrasing). DoJ asks Judge Chutkan to DENY more time for trump.
Trump attacks a lead witness in the case, Mike Pence, on his social media site. Blatant witness intimidation.
Judge Chutkan issues a minute order DENYING trump's motion for more time