The United States of America vs. Donald J. Trump, Defendant
The GOP has an opportunity to step back from the cliff it has been backing up to since 2015. It's time to take it.
I had another post planned for this morning, but obviously, it needed to be displaced. As usual, please:
Is three times the charm?
Yes, if we are talking about the enhanced possibility that Donald J. Trump will face consequences for planning, inciting and fundraising for what has, in effect, been a two-and-a-half year rolling coup attempt. No, if we believe that there are not enough indictments in the world to get Trump and his insurrectionist allies in the GOP to stand down.
But the good news, other than the indictment itself? We may just be seeing people who used to be Republican normies waking up from an almost eight-year fever dream.
Let’s start with the Grand Jury indictment presented by Special Counsel Jack Smith. You can read it here in a version annotated by New York Times reporters Charlie Savage and Adam Goldman that highlights passages most relevant to the charges. There are four counts, each of which contribute to an overall argument that Trump and six unnamed others participated in three criminal conspiracies to overthrow the incoming Biden government through “unlawful means and discounting of legitimate votes and subverting the election results.”
These charges are:
Details contained in the 72-page document make it possible to determine, with fair certainty, the identities of the indicted co-conspirators. They are, in order, the worst of the worst: Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, Kenneth Chesebro—and #6, an as-yet- unidentified “political consultant.” The big money on the identity of Bachelor #6? It’s either Roger Stone or Steve Bannon, and I am going with Roger Stone, because Bannon tends only to do things he can make money from, while Stone sometimes undermines democracy just because he thinks it’s fun. Also, if past experience is any guide, Bannon would have already flipped, and Stone never would. [Edit on August 3: the New York Times believes #6 is Boris Epshteyn.]
That blank space will taunt us for a little while longer. But what stands out about these charging documents is that they leapfrog right-wing partisans favorite defense of Trump’s lying, rabble-rousing, and fakery by conceding the free speech argument. The indictment stipulates that the Former Guy’s lies were, and are, protected under the First Amendment. “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 that he had won,” Smith explains in the indictment. “He was also entitled to formally challenge the outcome of the election through lawful and appropriate means, such as seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures.”
But criminal conspiracies that are driven forward by lies are not constitutionally protected. Using “dishonesty, fraud, and deceit,” the indictment explains in count 1, Trump interfered with federal government functions that were necessary to complete the 2020 election. As the rest of the document details meticulously, each assertion by Trump that the election had been stolen was followed by hard evidence that it was not; this information was often provided by state-level Republican officials and validated in court.
So, Smith has shifted the meaning of Trump’s lies from the category of speech to the category of criminal motivation for speech. It’s not the lies themselves, but Trump’s knowledge that his statements were false, and the fact that he circulated falsehoods with the express purpose of defrauding and disenfranchising voters and obstructing the certification of the election, that are at the heart of the indictment.
The key assertion? “These claims were false, and the Defendant knew they were false.” The government presumably will bring overwhelming evidence to the table that this was so.
And unlike the indictment brought in the Stormy Daniels case, which will remain sketchy until much later in the process (as permitted under New York State law) Jack Smith brings receipts to the indictment process. But let’s be clear: these are not all the receipts, and new ones are being produced every day, particularly in Michigan, where we have an indictment against fake Trump electors, and in Georgia, where we expect Trump to be indicted shortly. Pennsylvania’s fake electors are likely to escape prosecution, as they added language to their document invoking their slate only if a court overturned the results. But it doesn’t mean they won’t be called to testify.
A successful legal defense would, therefore, rest on persuading a jury that Trump and his co-conspirators did not know they were lying. Given the evidence we have heard, much of which was broadcast live during the January 6 hearings, and the evidence that some of the conspirators have given, that case will be very hard to make.
Giuliani has already admitted that he lied about Georgia election workers Ruby Freeman and Shaye Moss, whose lives were literally destroyed by accusations they had corrupted the vote count and the circulation of a fake video that claimed to document these actions. As importantly, Trump’s closest aides have testified that the Former President and his team were repeatedly presented with evidence that his assertions of election fraud were wild conspiracy theories. “But the Defendant repeated and widely disseminated them anyway,” the charging document asserts, “to make his knowingly false claims legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”
In other words, the lies were a means to an end that is not only not Constitutionally protected, but felonious.
It’s a strategy that, in a sense, makes use of every failed attempt to use the law to rein in Trump’s attacks of democracy. And could there be a better man to prosecute the case than Jack Smith? He is close-mouthed, aggressive, thorough, and unflappable—as a bonus, he also bears an uncanny resemblance to the Jesuit missionary in Bruce Beresford’s 1991 film, Black Robe:
(A digression, I know, but take a look—am I right or what?)
What has been fascinating up to now is that the GOP, in general, has decided to stick to the same strategy Trump pursued, as a collective and as individuals. They keep repeating things that they know to be false. They screech about Hunter Biden. They assert that investigating Trump is the real election interference. Texas Senator Ted “Cancun” Cruz offered a master class in combining these techniques yesterday. “It is not subtle. It is not complicated. This is election interference by the Biden Department of Justice,” Cruz tweeted. “Whenever there's a new development against Hunter and the Biden family, this politicized DOJ attacks Trump. And the media happily pivots to echo the Trump attacks.”
Republican presidential candidates seem paralyzed, as if they are being held hostage by political consultants. “Today's indictment serves as an important reminder: anyone who puts himself over the Constitution should never be President of the United States,” Trump’s Vice President, Mike Pence tweeted ambiguously. “I will have more to say about the government’s case after reviewing the indictment. The former president is entitled to the presumption of innocence but with this indictment, his candidacy means more talk about January 6th and more distractions.”
I mean, if you were running for president, wouldn’t you read the indictment before tweeting? Characterizing Trump as a “distraction,” rather than what he really is (a burning bag of dog poo sitting on the doorstep of the GOP as it enters the 2024 election season) is a hopeless prevarication. Pence’s statement also underlines a common tendency among Republican politicians, the majority of whom are lawyers, to speak in Trump’s defense, claim they haven’t actually read the indictment, and then spread the same lies that Trump put into circulation. “While I’ve seen reports, I have not read the indictment,” Florida Governor and former JAG lawyer Ron DeSantis tweeted. “I do, though, believe we need to enact reforms so that Americans have the right to remove cases from Washington, DC to their home districts. Washington, D.C. is a `swamp’ and it is unfair to have to stand trial before a jury that is reflective of the swamp mentality.”
Another strategy seems to be to literally not read the indictments. Remember Senator Josh “Haulin’” Hawley, who egged on the J6 crowd with a fist pump, and was subsequently caught on a security camera fleeing the forces he had helped to unleash? Hawley, also a lawyer, responded to the superseding indictment that charged a second Trump employee in the Mar-A-Lago documents case by complaining to Fox News host Laura Ingraham: “Now we're down to charging random people.”
They aren’t random people: they are low-level employees charged with specific crimes that enabled Trump’s crimes. So who is surprised that yesterday, before pivoting to a series of lame tweets demanding that the Missouri Democratic Party be accountable for a single whacko that supposedly threatened to burn down Trump supporters’ houses (or not), he unbelted this old response to the new indictment: “Biden DOJ unveils the latest effort to stop Trump from running against Biden—totally unprecedented in American history.”
It must be hard after a while to come up with new material. So, two weeks ago, Alexander Bolton at The Hill noted a growing tendency for Republican Senators to say nothing in response to Trump’s growing list of legal troubles, and even to open the door to the charges being correct. For example, Minority Whip John Thune of South Dakota (who aspires to by Minority Leader John Thune) noted that the legitimacy of any indictment would “depend on whether or not laws were broken.”
Indeed, it seems that numerous Republicans who acceded to Trump for years are now pondering what it might be like to just be normie conservatives again. Let’s look at Twitter accounts for the Senate Judiciary Committee: of the nine Republicans, only three defended Trump: Hawley, Cruz, and Marsha Blackburn of Tennessee, who is a raging idiot. Ranking Member Lindsey Graham, for the last seven years a Trump flunky, spent yesterday tweeting about a national standard for abortion that would extend beyond the first trimester. Iowa’s Chuck Grassley? Corn and rural hospitals. Texas Senator John Cornyn, who has been reserved about Trump for some time, tweeted twice in the last twelve hours, once about Houston Astros pitcher Framber Valdez’s no-hitter and another a New Yorker story about the Wagner Group: “Long but good,” he commented. Then there was Trump toady Mike Lee of Utah (defense spending), Arkansas Senator Tom Cotton (Service Academies, catfish, and DEI), Louisiana’s John Kennedy (gas prices, hurricane relief, business, and immigration), and North Carolina Senator Thom Tillis (prescription drugs and truck driver training).
Not a word about Trump.
It’s almost as if they have acquired a genuine interest in governing. Let’s not jump to any conclusions yet, but it is safe to speculate that the indictments are eroding the willingness to tolerate Trump at the most senior levels of the party. Whether they have been coordinated by the different prosecutors involved or not, these three indictments, with a fourth from Fulton County DA Fani Willis arriving by September 1, have been carefully scaffolded. They are escalating pressure on the GOP to come to terms with the difficulties Trump will face as a defendant and as a candidate, and with the reality that he can take them all down with him.
Long before the primary season begins, the Republican Party has been given an opportunity to step back from the cliff it has been backing up to since 2015. It’s not too late to take it.
The “Why Now” podcast is on hiatus this week, but:
You might want to give a listen to last week’s episode with the legendary historian Jacquelyn Dowd Hall. It’s about about why Southern history—and by extension, African American history—has always been a political battleground. (July 29, 2023)
And if you haven’t already, subscribe for automatic podcast downloads on your favorite platform!
Short takes:
Can we haz more indictmentz, plz? Michael Tomasky, editor of The New Republic asks if shoes will drop this week, opening more fronts against the Former Guy and intensifying the January 6 insurrection charges. But we have got to hope that, in relation to the Georgia inquiry, that Mark Meadows and Mike Pence have delivered hard evidence that the Trumpster Fire intended to overturn the election, rendering him constitutionally ineligible to run again. “Why?” Tomasky writes.” “Because there is still a reasonably good chance that this madman, even if convicted of federal crimes, will win next November. About 35 percent of the country adores him. Another 12 or 13 percent will vote for him against Joe Biden (or any Democrat) simply because they’re Republicans or they’re against abortion rights and they just can’t vote for a Democrat for president. That gets him close. He just needs another 3 or 3.5 percent—a little more than half of the (in my estimation) 6 percent or so of the electorate who are genuine swing voters.” (July 31, 2023)
So, if you can’t run a national campaign, what else can’t you do? That’s what Ron DeSantis’s major supporters want to know after the campaign reboot turned out to be as listless as the original campaign. As Adam Rawnsley and Asawan Suebsaeng report at Rolling Stone, “Various big DeSantis donors have been furious that the campaign seemed to take its cues from internet culture wars over niche issues,” Rawnsley and Suebsaeng write. “Some of that ire has been directed at DeSantis’ high-profile staff, especially Christina Pushaw, the campaign’s rapid response director and its unofficial chief of angry online feuding,” while promoting digital director, Ethan Eilon to deputy campaign director seems like DeSantis is doubling down on a glaring weak spot. Which explains why, even though culture wars issues have failed to give him traction, DeSantis is offering more of the same. (July 30, 2023)
In The Nation, feminist columnist Katha Pollitt weighs in on the Barbie movie with humor and realism. “Look at the real-life glass-ceiling-breakers whose achievements Barbie dolls supposedly encourage girls to emulate—politicians, judges, scientists, astronauts, airplane pilots, reporters, wildlife rescuers,” Pollitt writes. “These women do not give the impression of spending a lot of time trying on outfits in front of the mirror or leafing through Vogue by the side of the pool. The professionals I know are supersmart, kind, energetic women, but if they had spent as much time primping and shopping and obsessing about their looks as the Barbie lifestyle encourages, they never would have gotten anywhere. There are only so many hours in the day, and men don’t spend those hours putting on makeup.” (July 28, 2023)
Much as I abhor Stone and would love to see that evil Penguin behind bars, and much as Bannon's demise would be a boon to democracies struggling against fascist political movements all around the world, I have a special yen for #6 to be Mark Meadows, that pudgy yes-man chief of staff who lay on the couch texting on his cellphone while the Capitol was under attack and Cassidy Hutchinson stood in the door and said: "The rioters are getting really close, have you talked to the President?" "No, the President wants to be alone right now," he said still looking at his phone. (and probably texting with the Conspirator #1).
Those tweets are part of a long history of those people looking away from Trump when the spectacle distresses them just a bit too much. But they find a way to turn back to fawning and adoring once the news cycle moves on for a while. I think each time they're looking around and hoping three or four other guys will pipe up first in a way that can't be walked back. But even that hasn't really worked--they almost got there right after Jan. 6 and then chickened out except for the seven Senators who voted to convict. Plus Trump doesn't make anything impossible to walk back--as long as you come crawling to him and kiss his boot and fawn over him, you can always come back.