This is the first of two posts on the Trump indictment. The second will look at the possible legal and political paths which lie ahead between now and the 2024 election. Click below to subscribe to America Explained, make sure you never miss a post, and support my journalism. Subscribers can also pose a question in the comments and I’ll address it in a subsequent post.
Trump has been indicted under three separate statutes. One of them is the same statute used to charge Russian nationals who allegedly interfered in the 2016 election; another is a civil rights law which has been used to target, among others, the KKK. Nevertheless, there are no particularly novel legal theories involved in the allegations. If the facts stack up in court, he should be convicted.
Here are some of the most revealing details from the indictment:
There was a deliberate plan to provoke civil unrest and then crush it. One of Trump’s co-conspirators - unnamed but probably Jeffrey Clark - advocated invoking the Insurrection Act to call out the military and crush any protests which might result from Trump illegally staying in office. Another, Trump attorney John Eastman, said that “violence was necessary to protect the republic”.
On many occasions, Trump’s claims that particular people had committed electoral fraud or were refusing to help him steal the election led to death threats against them. Trump made these claims even though he knew that they were false.
There seems to be clear evidence Trump and those around him knew that at least some of the claims of election fraud that they were advancing were false. Trump called one such claim “crazy” in private but promoted it anyway in public. At one point, Rudy Giuliani was using a doctored video of vote-counting in Georgia to allege fraud. When offered the real video in order to refute the allegations, Trump refused to look and responded that the doctored one was “much better”.
Trump made the deliberate decision to sic the insurrectionists on Vice President Mike Pence when Pence refused to go along with his scheme to steal the election. The Secret Service took the decision to evacuate Pence from the Capitol one minute after Trump tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country”. At this point, insurrectionists were already at the Capitol chanting “Hang Mike Pence!”
The most difficult part of the case for the prosecution will be to prove beyond a reasonable doubt that Trump really did know that he had lost the election but was pursuing schemes to steal it anyway. I anticipate this leading to some absurd moments in the court of both law and public opinion. Trump’s defenders will be forced to claim that even though he was being told on a daily basis by the people actually running the election that there had been no widespread fraud, he still believed that there had been. They’ll in effect be forced to claim he’s a pig-headed idiot. But this kind of disconnection from reality is actually very on-brand for Trump, so could it work?
The second sentence of the indictment states one of its most important facts: “The Defendant lost the 2020 presidential election”. Everything else detailed in the document builds on this - with no election loss, there could be no corrupt scheme to steal victory. But over half of Republicans and about a third of Americans still don’t believe that Trump lost the 2020 election. They view Trump as a righteous warrior against oppression (of which this indictment, to them, is a continuation).
Most people create and sustain their political views not by carefully considering all available information, but through filtering information through their pre-existing political identity. Many people’s political identity is a key component of their sense of self and relationship to like-minded peers. For such people it’s more “rational” to reject disturbing information in order to maintain their cherished identity than it is to change their views and suffer all of the consequences (self-doubt, alienation from peers, etc). So there’s little reason to think that hardcore Trump supporters can be persuaded to change their minds even if this indictment is all upheld in a court of law.
Back to the indictment. The crimes alleged here ran on essentially two tracks. The first was to find some way to “legally” award the election to Trump under the color of law. Getting Pence to just declare Trump the winner during the certification of votes would have been an example of this. But even with Pence’s cooperation, that wouldn’t have worked - in reality Pence had no legal power to do this.
So the second track - deliberately creating a constitutional crisis - was more important. This is where the “fake elector” scheme came in. Trump’s circle plotted to have two slates of electors sent to the Electoral College from various swing states - one was the lawful, duly-elected slate, and the other was a set of fake electors who claimed their state had really voted for Trump. The intention was to create confusion about which slate was the “real” one, then resolve this constitutional crisis through force - the Insurrection Act, etc. It was to be a manufactured crisis, and violence was always part of the plan.
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