The third Trump indictment

Yesterday, Donald Trump was indicted for the third (but not the last) time. The first indictment, by a New York prosecutor in connection with payments to Stormy Daniels, is a joke. The second indictment, by special counsel Jack Smith for obstruction of justice and mishandling of classified information, is deserved, solid, and (if Smith gets all of his evidence admitted) probably air tight.

Yesterday’s indictment, by Smith for disputing the outcome of the 2000 election, falls somewhere in between the first two. It’s not frivolous, but it should not have been handed down.

The latest indictment is notable for the crimes it does not allege. Smith does not accuse Trump of sedition or of inciting the violence that occurred on January 6, 2021. These would be very serious crimes that, if the evidence supported alleging them, would certainly justify indicting Trump.

But Smith apparently concluded that he didn’t have the goods to prosecute Trump on these grounds. So instead, he decided to prosecute Trump for things he said about the 2020 election and actions he took — none criminal in itself — to fight for the presidency.

A prosecutor with a decent regard for free speech would back away from this kind of prosecution, but Jack Smith is not that prosecutor. So instead, he rummaged through the U.S. Code looking crimes to fit his grievance. He found code sections that were never meant to apply to Trump’s bad behavior (e.g., the Ku Klux Klan Act) but into which, perhaps, he could wedge his facts.

This seems to be a Jack Smith specialty which, I assume, is why Merrick Garland picked him for the job. Smith tried this on Virginia’s former governor, Bob McDonnell. He got his conviction, but a unanimous Supreme Court tossed it.

Let’s set statutory questions aside for the moment and examine Smith’s factual assertions. What behaviors of Trump does the indictment say give rise to crimes?

First, Trump made “knowingly false claims of election fraud” to “subvert” the 2020 election results. Second, he and members of his team selected fraudulent electors for that same purpose. Third, he and a member of his team pushed for sham election crime investigations by misrepresenting the Justice Department’s views Fourth, Trump tried to get Mike Pence to alter the election results. Fifth, Trump “redoubled” his efforts to alter the results even after a crowd broke into the Capitol building. (Surely, this bit is in the indictment for effect.)

In my view, items 2-5 are actions a presidential candidate can take if he believes an election is being stolen from him. A presidential candidate is far better advised not to take them (as was the case with Richard Nixon in 1960 and even Al Gore in 2000). Indeed, even absent this indictment, Trump himself would be in a better position today had he said by late December 2020 that the election was stolen but he would no longer contest it.

But poor judgment and insufficient regard for the health of the Republic aren’t crimes. If a candidate thinks he’s the victim of election fraud, I don’t see how it can be a crime to take steps that aren’t criminal in themselves to counter the supposed fraud.

One necessary step, at a certain point, is to have a slate of electors in case his claims of fraud are eventually upheld. The indictment calls these electors “fake,” but actually they are simply alternative electors. They weren’t held out as the electors selected by state authorities.

Another step might be to have the Justice Department press for investigations at the state level. Yet another step, given his role in the certification process, is to try to sway the vice president.

I don’t see why any of these steps is a crime. Nor is it a crime to continue to contest an election even in the face of a riot at the Capitol. If the president had incited the riot or urged it to continue, that would be different. But the indictment doesn’t accuse Trump of incitement, and it acknowledges that during the riot, Trump urged those inside the Capitol to be peaceful.

The arguments I’ve just made assume a candidate who believes or strongly suspects he’s the victim of election fraud. They don’t apply to a candidate who knows there was no outcome-determinative fraud.

Thus, the prosecutor’s allegation that Trump knew there was no such fraud is the key to his factual case. Does the indictment support this allegation?

In my view, it certainly supports the view that Trump should have known he wasn’t the victim of outcome-determinative fraud. Smith cites in detail the countervailing evidence presented to Trump that there was no such fraud. That evidence is, most notably, in the form of statements by members of his campaign team and by GOP officials in the states at issue.

I think it’s absolutely fair to say that Trump acted with reckless disregard of the truth with many of his election fraud claims. But did he know these claims were false?

The indictment tries to come up with a smoking gun or two. It quotes Trump, after hearing one particular claim of fraud, saying it “sounds crazy.” Does this show beyond a reasonable doubt that Trump knew the claim was false? Probably not. Things can sound crazy, yet turn out to be true.

The indictment also quotes what Trump apparently said during a meeting with the joint chiefs of staff in very early January about whether to press ahead with investigating voter fraud. The quote is: “Yeah, you’re right. It’s too late for us.”

But this is a statement about the probability of succeeding with voter fraud claims given the tight timetable. It has nothing to do with what Trump thought about the truth of these claims.

The indictment focuses on false statements included in a draft DOJ memo to election officials in Georgia falsely stating that the Justice Department had “identified significant concerns that may have impacted the outcome of the election in multiple States.” The memo was written by an alleged co-conspirator (Jeff Clark). There is no indication that Trump was involved in the drafting process or that he approved the memo. (Again, this part of the indictment appears to be included for effect and maybe as a shot at Clark.)

Does Smith have enough evidence to convince a reasonable jury (not to be confused with a D.C. jury in a case like this) that Trump knew his claim of outcome-determinative fraud was false? I think it’s a borderline case. I also think that cases that are borderline on the facts should not be brought — especially against a former president and current presidential contender.

The same is true of cases that are borderline on the law. As I said, Smith is trying to shoehorn his (borderline) facts into statutes of questionable applicability. And he’s doing this to prosecute political speech — highly irresponsible speech, but political speech, nonetheless.

Even if he prevails at trial, Smith might well lose on appeal — as did, resoundingly, when he prosecuted Bob McDonnell. But by then, the political damage to Trump from having to defend this case (and possibly being convicted before the 2024 election) will have been inflicted.

A great many will believe that such was the intention all along. This will undermine faith in our justice system — perhaps irredeemably.

In my view, therefore, this is a case that shouldn’t have been brought.