August 3, 2023
What makes the indictment against former President Donald Trump on Tuesday, August 1, so breathtaking is not that it is the first time a president has been charged with a crime or even the second. Trump already holds those records. But, as serious as hush money and classified documents may be, this third indictment in four months gets to the heart of the matter, the issue that will define the future of American democracy, reports The New York Times.
At the core of the United States of America v. Donald J. Trump case are the questions, Can a sitting president spread lies about an election and try to employ the authority of the government to overturn the will of the voters without consequence?
In effect, Jack Smith—the special counsel who brought the case—charged Trump with one of the most sensational frauds in the history of the United States, one “fueled by lies” and animated by the basest of motives, the thirst for power.
In a 45-page, four-count indictment, Smith dispensed with the notion that Trump believed his claims of election fraud. “The defendant knew that they were false,” it said; and made them anyway to “create an intense national atmosphere of mistrust and anger and erode public faith in the administration of the election.”
The elements of the alleged conspiracy laid out in the indictment were, for the most part, well-known since the congressional inquiry into the January 6, 2021, attack on the Capitol wrapped up seven months ago—and many of them long before that. In that sense, the unsealing of the document had what the Times characterizes as “a bizarrely anti-climactic feel to it,” given the stakes.
But if long delayed, the indictment wove together all the intrigue between the November 3, 2020, election and the Jan. 20, 2021, inauguration into a damning tale of a president who pushed in seemingly every possible way to stop the handover of the White House to the challenger who beat him.
John Adams established the precedent of peacefully surrendering power after losing an election. Ever since, every defeated president accepted the verdict of the voters and stepped down. As Ronald Reagan once put it, what “we accept as normal is nothing less than a miracle.”
For all of the many, many allegations made against him on all sorts of subjects during his time on the public stage, everything else feels small by comparison. Unlike the indictment by New York State for allegedly covering up a payment to a porn actress and Smith’s previous indictment for allegedly jeopardizing national secrets after leaving the White House, the new charges are the first to deal with actions taken by a president while in office.
While he failed to keep his grip on power, Trump has undermined the credibility of elections in the United States by persuading three in ten Americans—about 30% of voters—that the 2020 election was somehow stolen from him, even though it was not and many of his own advisers and family members know it was not.
Bringing the case to court, of course, may not restore that public faith in the system. Millions of Trump’s supporters and many Republican leaders have embraced his narrative of victimization—dismissing the prosecution without waiting to read the indictment as merely part of a far-reaching, multi-jurisdictional and sometimes even bipartisan “witch hunt” against him.
Trump has been laying the ground for the eventual indictment for months, making clear to his backers that they should not trust anything prosecutors tell them. “Why didn’t they do this 2.5 years ago?” Trump wrote on his social media site on Tuesday afternoon. “Why did they wait so long? Because they wanted to put it right in the middle of my campaign. Prosecutorial Misconduct!”
A statement issued by his campaign went further, equating prosecutors with fascists and communists. “The lawlessness of these persecutions of President Trump and his supporters is reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes,” it said. “President Trump has always followed the law and the Constitution, with advice from many highly accomplished attorneys.”
Name-calling is a political defense, not a legal one, but one that so far has succeeded in preserving his electoral standing in his comeback campaign for the White House. Despite prognostications to the contrary, the last two indictments succeeded only in enhancing his appeal among Republicans, the Times notes, in the contest for the party nomination to challenge President Joe Biden next year.
In a court of law, however, the challenge for Trump will be different, especially with a jury selected from residents of Washington, D.C., a predominantly Democratic city where he won just 5% of the vote in 2020. Trump’s strategy may be to try to delay a trial until after the 2024 election and hope that he wins so that he can short-circuit the prosecution or even try to pardon himself.
The most essential facts of the case, after all, are not in dispute, nor did he deny any of the assertions made in the indictment on Tuesday. Trump was astonishingly open at the time in declaring that he wanted to overturn the election. Since leaving office, he has even called for the “termination” of the Constitution to reinstall him in the White House immediately.
The question is whether the facts add up to crimes as alleged by a federal grand jury at Smith’s behest. Just as no president ever tried to reverse his defeat at the ballot box before, no prosecutor has brought charges for doing so, meaning there is no precedent for applying the statutes on the books to such a circumstance.
Trump’s defenders argue that he had good-faith reasons for contesting the election results in multiple states and that he did nothing more than pursue his legitimate, legal options—a view shared by 74% of Republicans in a new poll by The New York Times and Siena College. What Smith is doing, they maintain, is criminalizing a political dispute in what amounts to victor’s justice—Biden’s Administration punishing his vanquished foe.
But as the indictment methodically documented, Trump was told over and over again by his own advisers, allies and administration officials that the allegations he was making were not true; yet he publicly continued to make them, sometimes just hours later.
He was told they were not true by not one, but two attorneys general; multiple other Justice Department officials; and the government’s election security chief—all his appointees. He was told by his own vice president, campaign officials, and the investigators they hired. He was told by Republican governors and secretaries of state, and legislators. As one senior campaign adviser put it at the time, it was “all just conspiracy” garbage “beamed down from the mothership.”
Despite all that, Trump has never backed down in the two and a half years since, even as assertion after assertion has been debunked. Not a single independent authority who was not allied with or paid by Trump—no judge, no prosecutor, no election agency, no governor—ever has validated any substantial election fraud that would have come close to reversing the results in any of the battleground states, much less the three or four that would have been necessary to change the winner.
The one who tried to defraud the United States, Smith charged, was Trump—with bogus claims that he knew or had every reason to know were bogus—all in a bid for power. The former president will argue that this is all politics and that he should be returned to office in next year’s election, and so far millions of Americans have taken his side.
Now the justice system and the electoral system will engage in a 15-month race to see which will decide his fate first—and the country’s. The real verdict on the Trump presidency is still to come.
Research contact: @nytimes