On Tuesday, August 1, Jack Smith’s investigation into Donald Trump’s attempts to undermine the 2020 election culminated in a series of charges filed against the former president. The indictment, which is 45 pages long, accuses Trump of several crimes related to the outcome of the election. Smith’s case hinges entirely on what he presumes Trump knew or thought about the actual turnout of the election.
Smith accuses Trump specifically of four crimes.
- Conspiracy to defraud the United States
- Conspiracy to obstruct an official proceeding
- Obstruction of and attempting to obstruct an official proceeding
- Conspiracy against rights
In reading the indictment, two things remain certain as of right now:
- Donald Trump is innocent until proven guilty.
- Donald Trump took the advice of very nonserious people over very serious people.
The entire basis of the case against Trump is that he tried to overturn the 2020 election while knowing his claims were false. I am expecting, as was the case in the Mar-a-Lago documents case, that a superseding indictment will come through later, clarifying and attempting to strengthen the case laid out in this indictment – which, as of now, feels less like a legal case and more like an impeachment case.
It is interesting that both the January 6 Committee and now Special Counsel Jack Smith have done the job that Congressional Democrats should have done in the wake of January 6 – investigate and make the case for impeachment. What is detailed in this indictment, if true, calls into question Trump’s competency and judgment. He was listening to people who were making wild claims that were factually inaccurate and, we can safely assume, they knew this. He was listening to people who are now thoroughly discredited (and, in some cases, disbarred), going along with their claims that he is the rightful president and that the election was stolen from him.
There has never been any evidence to prove that the election was fraudulent enough to affect the outcome. There were certainly shady actors and legal nightmares where rules were changed in the middle of an election that definitely had an impact. But claims against Dominion voting machines, state election officials, and others simply have not held up.
Read More: The January 6 Indictment
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The evidence laid out in the indictment might have made the Democrats’ impeachment case against Trump stronger. Clearly, his judgment was compromised. He was letting outsiders into his inner circle and disrupting the flow and transition of government. Those outsiders ultimately had him convinced enough that he did extremely misguided things like calling Georgia Secretary of State Brad Raffensperger and telling him to find him some votes.
George Washington University law professor Jonathan Turley is extremely skeptical of the indictment, as my colleague Nick Arama pointed out yesterday. In particular, Turley notes how it seems to be far more of a stretch than the Mar-a-Lago case in Florida.
“If you take a red pen to all of the material presumptively protected by the First Amendment, you can reduce much of the indictment to haiku,” he said. “I felt that the Mar-a-Lago indictment was strong. This is the inverse.”
In the wake of the January 6 riot at the Capitol, Congressional Democrats had the opportunity to impeach Trump, they felt, and they took it. But what proceeded was a rushed effort that left no time for gathering facts and making a substantial case against Trump. It is entirely possible that, had the Democrats acted more rationally in their proceedings, and had gathered enough evidence or even made an attempt to, Trump could have been meaningfully censured, and possibly have come closer to conviction in the Senate trial for his second impeachment.
But here we are, two and a half years later, and Special Counsel Jack Smith is laying out a perfectly fine impeachment case, but a weak legal case.
Read More: Reactions to the Indictment
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However, the greater concern for Democrats is that, for all their crying and screeching about insurrection and treason, Smith could not stretch the facts far enough for that. That’s what they’ve been calling for since the investigations into Trump started, and they repeatedly haven’t gotten it. It is a stretch even for a politically-motivated investigation. Fraud and obstruction were the best he could do, and those charges are focused more on thought crimes than anything else.
It is not very clear what Smith is accusing Trump of. At its core, he alleges that Trump was deceiving the public and that his belief in that 2020 was a stolen election was an attempt to defraud the United States and deprive voters of their right to vote. But it lists no action that Trump took other than his encouraging people to go to the Capitol on January 6 – though it omits the fact that he told them to go peacefully.
But prosecuting him based on his beliefs – and, more importantly, what his lawyers convinced him was the truth – seems like a lengthy stretch at best and crossing into protected speech at worst. That does not seem like it should be territory you want to wade into, but Smith is doing so with gusto.
You may believe that the 2020 election was stolen, and you may have supported or continue to support efforts to prove that. With this indictment, Smith is saying you, too, are guilty of crimes against the U.S. government. You are not entitled to your beliefs, he is arguing here. That is not a legal case, and even if the judge, in this case, is strongly anti-Trump, Trump can appeal and would likely win on that appeal because of how thin the evidence is and how closely it comes to constitutionally-protected speech.
This does not seem to be a serious case. It seems to be a political one that just wanted to bury Trump under more charges.