Trump and his acolytes are whining across media platforms that Tuesday’s grand jury indictment of Donald Trump is a violation of his First Amendment rights. The villains, they complain, are the weaponization of the Department of Justice and the criminalization of ordinary political speech. Nothing could be further from the truth.
Before anyone joins the wailing chorus, please read the 45-page Grand Jury Indictment, charging the former President with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding and conspiracy against rights.
The indictment tackles head-on on page 2 the argument that surely will be part of Trump’s defense (violation of First Amendment rights),declaring, “The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely” that the election had been stolen from him, that he had won. He was also entitled to take legal steps (litigation, audits, recounts) to prove his case. He exercised all those rights, and all failed. There was no evidence to prove there was fraud that would have changed the outcome of the election. What the indictment asserts, very convincingly, is that Trump then followed a series of illegal steps to discount legitimate votes and subvert the election.
This is the most consequential of all the crimes of which Donald Trump has been accused. It goes to the question of whether we can continue to exist as a Constitutional democracy. He sought to undermine the core of our system – the peaceful transfer of power – guaranteed by the U.S. Constitution and the 1887 Electoral Count Act. Fully apprised of the truth by his appointees and supporters inside and outside the government, he conspired with a six-person cabal of co-conspirators (including the reprehensible Rudy Giuliani, John Eastman, and Jeffrey Clark) to get state officials and legislators to overturn already certified results, to create fraudulent slates of substitute electors (many of whom he also duped), and to pressure Vice President Mike Pence to overturn the electoral count. As Mike Pence told Fox News on August 2, “It wasn’t just that they asked for a pause. The President specifically asked me, and his gaggle of crackpot lawyers asked me, to literally reject votes.”
Despite having been informed that he was peddling lies about stolen votes and voting machine manipulation, the former President exhorted his crowd to march to the Capitol to disrupt the Constitutionally prescribed vote counting procedures and amp up the pressure on Pence. The crowd menacingly advanced, and the wild and lethal attack is now on the books as one of – if not the – most disgraceful days in the nation’s history.
The indictment is brilliant in the way it details the complexity of the scheme. It reveals in a most granular way the lurid specifics of Donald Trump’s criminal acts. The evidence presented delves deeply into the facts of what happened in seven targeted states. In one after another, the former President’s false claims are disproved, including by many GOP officials who were staunch Trump supporters. The Michigan House Speaker, for example, said no one fought harder for Trump than he. “But,” he said, “I love our republic too.” Were he to bow to Trump pressure and accept the fake electors, he feared “we’d lose our country forever. This truly would bring mutually assured destruction for every future election in regards to the Electoral College. And I can’t stand for that. I won’t.”
It’s all too easy to look around and bemoan the toxic state of our tribal politics today. I needn’t enumerate the rise of public distrust in our institutions, the frail demeanor of a still quite effective incumbent President, the nation’s slowness to tackle significant public policy challenges, and the spineless Trump enablers in the Republican Party.
Let us remember that the indictment might not have happened but for the foundation laid by the January 6th committee and the willingness of conservative Republicans like Liz Cheney and Adam Kinzinger to put country above politics. This indictment reminds us that there are also good and brave people in both parties, highly talented and principled officials in both state and federal governments, and that their courage and persistence may well end up proving that the United States is government by the rule of law and no person is above it.
But we shouldn’t morph that reassurance into ebullience. There’s a big difference between indictment and conviction. All it takes is one juror to create a hung jury, which Trump would claim as exoneration. That’s more than a little scary and could well play to his advantage in the general election.
Let’s allow ourselves to be encouraged. But let’s challenge the doubters and deniers to read the indictment. Consider it a homework assignment – Rx for an informed electorate. Here’s hoping.