A PERILOUS PROSECUTION
WASHINGTON — United States of America v. Donald J. Trump is the most important indictment in the nation’s history.
And the caption of the case says it all. Most federal prosecutions have the government defending the interests of society writ large — against drug trafficking, or corporate fraud, or gun crimes. This prosecution is different. The United States is defending itself, recoiling against an effort to undo the democracy that Trump swore an oath to protect.
The indictment tells the story in clear, unsparing terms. “The Defendant lost the 2020 presidential election,” it states at the start, 45 pages that unspool a story that is at once familiar and newly shocking. “Despite having lost, the Defendant was determined to remain in power.”
The former president now stands accused — not by political opponents, not by opinion columnists, but by a duly constituted grand jury that has heard the evidence against him. As the indictment spells out, Trump tried to commit a crime against democracy. The country and its voters are his intended victims.
The indictment takes pains to recognize 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.” But Trump isn’t charged for his egregious lying.
He is charged with engaging in numerous “unlawful means of discounting legitimate votes and subverting the election results,” in what prosecutors say amounted to three separate criminal conspiracies: to obstruct the business of government in conducting the election; to obstruct the official proceeding of Congress in counting and certifying the electoral college results; and to violate the rights of all Americans to have their votes counted.
Trump’s lawyers will almost certainly mount challenges to the legal sufficiency of these claims, but these charges do not have the air of a prosecutorial stretch. Special counsel Jack Smith, for instance, held off, as expected, from charging Trump with seditious conspiracy, which would have required evidence that he intended the violent overthrow of the government.
It is terrible, tragic even, that it has come to this. If the idea of bringing criminal charges against a former president and current presidential candidate sits uneasily with you, I agree. It should, and you do not have to be a Trump partisan to conclude that Smith might have erred here.
That is not my view, but I do believe that this is not a step to be taken lightly. The risks of charging Trump include inflaming even more distrust of what his allies will claim is a partisan “weaponized” Justice Department; injecting more turmoil into an already inflamed and divided electorate; and, most frightening, unleashing a punitive cycle of prosecuting political opponents.
The Trump team’s response, complaining that “the lawlessness of these persecutions of President Trump and his supporters is reminiscent of Nazi Germany in the 1930s,” shows, as though any more proof were needed, that Trump won’t hesitate to try to destroy public confidence in the administration of justice if it might help him escape liability.
The broad outlines of Trump’s conduct, and its potential criminal ramifications, have been long known.
Fully warned that he had lost the 2020 election and that his claims about stolen votes had no basis in reality, he was nonetheless instrumental in arranging for slates of phony electors to be submitted for certification.
Fully warned that the vice president’s role in certifying the electoral college results was purely ministerial, he nonetheless repeatedly pressured Mike Pence not to act as the Constitution and the law demanded — to the extent that by Jan. 5, 2021, as Trump warned of an “angry” crowd, Pence’s chief of staff became so fearful for the vice president’s safety that he alerted his Secret Service detail.
Fully warned that the mob he had summoned to Washington to protest the election results was armed, Trump nonetheless incited them to march on the Capitol to try to prevent the peaceful transfer of power for the first time in the history of the republic.
To this extensive trove of pre-existing knowledge, the indictment adds some tantalizing new facts. It describes how, on the evening of Jan. 6, 2021, when then-White House counsel Pat Cipollone beseeched Trump to cease his efforts to stop the certification, “The Defendant refused.”
Can we dispense with the idea that the proper and sufficient punishment for Trump’s behavior should be at the hands of voters, at the ballot box in November 2024, if it comes to that? Where, exactly, was that deep respect for the will of the voters when Trump, as the indictment sets out, was conspiring to prevent their will from being respected when it came to the 2020 results? As to supposed (but unproven) double standards, how could it be fair to have more than a thousand of those whose behavior Trump incited face prosecution and let the individual behind it all go uncharged?
If Trump’s behavior is allowed to stand, if it is not called out for the crime that it appears to be, the message to future presidents seeking to retain power at all costs would be: The coast is clear. Do what you need to remain in office. You can get away with murder in the middle of Fifth Avenue, and insurrection in the very halls of democracy.
Prosecuting Trump on these charges is a grave, even perilous, step. Condoning his behavior by ignoring it would be far worse.