Trump indictment: the third impeachment

 

Gordon L. Weil

Set aside the endless flood of punditry and look through the eyes of jurors at the indictment of former President Donald Trump for trying to seize his reelection based on false fraud claims and violations of election laws.

When the case finally reaches its conclusion, 12 jurors in Washington, D.C., will decide if Trump is guilty or not of the crimes with which he is charged.  For them, the case could turn out to be relatively simple.

Most of the indictment consists of a detailed recitation of events involving the effort by Trump, Rudy Giuliani and other associates in trying to nullify votes cast for Joe Biden in several states.  They claimed that votes for Trump had been fraudulently changed or discarded and asked state officials or legislatures to strip Biden of his victory and replace him with Trump.

This single list of facts is used to support all charges.  Anyone who has followed Trump’s efforts between the November 2020 election and the January 2021 inauguration would find little that is unfamiliar in this list.  But the indictment discloses new details about meetings and conversations that support what was already known.

A principal focus of the recounting is the efforts in several states to create false panels of presidential electors whose names could be sent to Congress along with the official electors.  The intention was to create enough confusion that Congress could not designate the winner and would decline to select Biden.  Presumably, those states could then officially change their votes.

Behind the recitation of facts must be witnesses who will testify as to the truth of what the indictment states.  It’s most likely that Special Prosecutor Jack Smith took the time to line them up to testify.

The first task for jurors will be to determine if the actions took place and if Trump was directly involved in them.  That looks to be a relatively easy job, because it would be difficult for Trump to show that he had little or no involvement.

The second task will be for the jury to determine if the actions by Trump and his co-conspirators amounted to violations of the laws cited in the indictment. 

To support the grand jury charge that Trump knew he had lost and resorted to lying about the election, Smith relies on the former president having been told repeatedly by many trusted and high-ranking officials, almost all his own appointees, that he had lost.

Trump is expected to argue that he sincerely believed that he had won the election and that he was doing everything possible to produce the correct result.  Given the magnitude of the damage to the country of placing in office the wrong man, he had to resort to extreme measures to halt the confirmation of Biden as the next president. 

Trump claimed election fraud had occurred though no courts or state election authorities, some of them his Republican supporters, would agree with assertions that lacked evidence. In the process, did he violate federal and state laws and try to induce or threaten others to do so?

If Trump honestly believed he won, would he be justified in violating the law in the pursuit of a fair outcome of a presidential election?  His personal advisors told him that to save the Republic, he could break the law.

The indictment provides a detailed record of his efforts to convince and then threaten Mike Pence, the Vice President, to halt the electoral vote count or simply throw the result to him.  If Pence testifies, he could provide proof that Trump had violated the law at the highest level of government.

The former president is also expected to claim that what he said is protected by the First Amendment, thus completely immunizing him.  But Smith carefully avoided charging him with incitement, sticking instead to his acts and orders.  Also, free speech rights do not protect words that ask or direct others to commit crimes.  That amounts to conspiracy.

Trump charges that Biden is politicizing this case to weaken his re-election chances. But Trump himself politicizes it to stir up support among his loyal core and to raise campaign contributions that pay his legal costs.

Trump may believe that his public outrage at the charges could intimidate the judge and influence her decisions on the timing of the case.  If he can delay it until after an election he expects to win, then he might assume a presidential mantle of immunity even if convicted.

The fourth indictment count charges Trump with conspiring “to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States – that is, the right to vote, and to have one’s vote counted.”  That’s an impeachable charge.

Trump has been twice impeached and both times he has been acquitted by the Senate when Republicans refused to convict.  The indictment has become the third impeachment.

Those who will ultimately determine if Trump is guilty or not won’t be his Senate allies, but 12 average people.