A nation-defining moment.

August 3, 2023

          It is often difficult to appreciate the significance of historic events in the moment we experience those events. The significance of the Battle of Gettysburg was obvious; the significance of Lincoln’s brief remarks dedicating the Soldier’s National Cemetery at Gettysburg took generations to appreciate. Even events that grip the nation when they occur—like the murder of Emmett Till—are freighted with hidden significance that unfolds over time and can be fully appreciated only from the perspective of history.

          So, too, with the indictment of Donald Trump for attempting to overturn the 2020 election. The indictment is big news. The wall-to-wall media coverage tells us so. But the indictment is more than “big news.” It is a nation-defining moment. It will unfold over time and can be fully appreciated only from the perspective of history. To the extent possible, we should force ourselves to reflect on its significance: In a free and democratic nation of laws, a grand jury composed of ordinary citizens indicted the nation’s former leader for an attempted coup.

          Persecution of former leaders by their successors is often a hallmark of corrupt regimes. In such cases, charging a former leader is a sign of a nation’s weakness. Here, the indictment of Donald Trump is a testament to our nation’s strength. We could have made the collective judgment that the events of January 6th are too painful and divisive to permit the prosecution of the coup plotters. Indeed, for more than a year, it appeared that the Department of Justice had settled on that path.

          But with the urging of the J6 Committee and diligent state prosecutors, the tide turned. A nation of laws roused itself to defend its charter. That decision is a nation-defining moment whose significance cannot be overstated. In choosing to defend the Constitution and the rule of law despite the division and strife that beset our nation, we are following in the footsteps of Lincoln. In demanding accountability for those who sought to overturn the Constitution, we are re-dedicating ourselves to the ‘unfinished work’ that challenges each generation anew. This task is our generation’s ‘measure of devotion’ to the rule of law.

          The indictment against Donald Trump is ordinary and unremarkable in many respects. It is the product of a routine process that plays out thousands of times each year against Americans charged with serious crimes. But the indictment is a historic singularity in other respects.

          Today, let’s pause to center ourselves in the broader arc of history and appreciate the momentous nature of what we just witnessed: In a free and democratic nation of laws, a grand jury composed of ordinary citizens indicted the nation’s former leader for an attempted coup. That is a rarity. And we are fortunate to have witnessed a nation-defining moment unfold before our eyes.

Reaction to the indictment.

A.   The “gaggle of crackpot lawyers.”

          Several themes emerged the day after the J6 indictment was released. The most important is that Trump continues to talk about his crimes on social media—always a bad idea, but especially so after an indictment. Trump and his surrogates have been sniping at former Vice President Mike Pence, suggesting that Trump was only asking Pence to “pause” the count of electoral votes. Those attacks finally angered Pence, who unloaded on Trump, saying,

“[I]t was “completely false” that Trump only asked him to “pause the vote counting,” as Trump’s attorney claimed Tuesday evening. Pence said it was perfectly clear what Trump wanted him to do.

“Let’s let’s be clear on this point: It wasn’t just to ask for a pause,” Pence said on Fox News. “The president specifically asked me ― and his gaggle of crackpot lawyers asked me ― to literally reject votes, which would have resulted in the issue being turned over to the House of Representatives and literally chaos would have ensued.”

         The phrase “gaggle of crackpot lawyers” will stick to the six un-indicted co-conspirator attorneys like a cheap suit on a humid day in Miami. Worse, Pence is solidifying his testimony against Trump: “The president specifically asked me to literally reject votes.” That specific phrasing is not included in the indictment and will lead to a new question at trial: Q: “Mr. Vice President, did the Defendant “specifically ask you to literally reject votes.”” Pence will be compelled to answer “Yes” based on his public statement today.

          The point is that Trump will continue to make admissions and elicit damaging testimony as he tries to litigate his alleged innocence on social media. Trump is making Jack Smith’s job easier every day.

B.   The claim that the indictment “criminalizes free speech”

          Some of Trump's lawyers and friendly media outlets tried to make the case that the indictment “criminalizes” free speech. Those lawyers and media outlets apparently have yet to read the indictment. The indictment does NOT criminalize protected speech. For an excellent discussion of this issue, see Ken White’s complete demolition of an editorial by the National Review. See Ken White, The Popehat Report, People Are Lying To You About The Trump Indictment (substack.com).

          Ken White’s essay is worth reading because he refutes a deceitful argument made by the National Review that we will likely see repeated ad nauseam over the next year: The National Review editorial board states that criminal fraud requires an intent to “swindle victims out of money or tangible property.” That is a correct statement of the law as it relates to wire fraud—a crime that the indictment does not allege against Trump. Instead, the indictment alleges defrauding the United States under 18 USC § 371. As White notes, “[t]he Supreme Court and lower courts have repeatedly and specifically ruled that Section 371 doesn’t require a scheme to take money or property.”

          So, point one: Wire fraud and defrauding the United States are different crimes.

          Point two is that there is no First Amendment right to unlawfully overturn an election. See Ian Millhiser’s excellent discussion in Vox, There is no First Amendment right to overturn an election, no matter what Trump says. Millhiser writes,

There are at least two reasons Trump’s alleged actions are not protected speech. One is that Smith repeatedly accuses Trump of pressuring other government officials to commit criminal acts of election fraud, and it is well established that soliciting another individual to commit a crime is not protected by the First Amendment. . . .

Additionally, Smith repeatedly alleges that Trump “knew” that he was spreading lies when he claimed that he had prevailed in 2020, or that the outcome of the 2020 election was in doubt. This matters because the Supreme Court has held that the First Amendment is especially weak when applied to false statements made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

          Millhiser’s discussion brings us to the question of intent: What must Jack Smith prove about Trump's knowledge of falsity? Here, let me give a practical answer and a legal answer. The practical answer is set forth in Talking Points Memo, Was That Wrong? As TPM notes, Trump frequently tries to wriggle out of accountability by claiming that he truly believed the lies he spouts. But as TPM notes, what Trump “believed” in the purest sense of the word is irrelevant:

Prosecutors don’t need to prove what Trump believed. That’s in part because truly proving belief is a fool’s errand since we are fundamentally stuck with the self-serving testimony of the person whose state of mind we’re trying to discern. Good liars lie consistently. Pathological liars lie in a way that they even partly convince themselves is true.

[Subjective] belief isn’t all that matters. Let’s say Trump truly believed he was the winner of the election. That would fully entitle him to exhaust every judicial remedy to vindicate that belief. But it still wouldn’t entitle him to inspire a violent mob to ransack the Capitol, to threaten the life of his vice president or to take numerous steps to halt the formal counting of electoral votes.

          In other words, you may truly “believe” you have the right to rob a bank because the money in the vault belongs to you, but that belief is legally irrelevant.

          A reader/lawyer sent a note from a colleague who practices criminal law. The practitioner provided this explanation:

Federal case law is clear that “knowledge” under each statute is satisfied if the prosecution can show “willful ignorance” or “willful blindness.”  Jurisdictions differ on the meaning of willful ignorance.  (The Model Penal Code adopts a definition that would be more favorable to Trump than those that the federal courts use.).  

The federal courts regularly hold that a defendant is willfully ignorant if he was subjectively aware of a high probability of X but purposefully avoided learning whether X in fact existed.  The federal courts also regularly hold that it is not enough to show mere recklessness (subjective awareness of a substantial probability of X) or negligence (no awareness of a substantial probability of X).

          Who among us doubts that Trump was (at least) “willfully ignorant” of the truth that he lost the election? Indeed, the indictment recites several instances in which Trump says that it does not matter whether Biden won the election, Trump sought only to have his co-conspirators raise doubts about that proposition so that he could engage in unlawful conduct to stop the electoral count.

          Finally, many commentators have noted that by omitting a charge for “insurrection,” Jack Smith avoided “free speech” defenses to Trump's speech on The Ellipse that immediately preceded the assault on the Capitol. See op-ed in NYTimes by Randall D. Eliason, What Makes Jack Smith’s New Trump Indictment So Smart. Eliason writes,

One charge that was not included in the indictment falls under 18 U.S.C. Section 2383, which makes it a crime to incite, assist or engage in a rebellion or insurrection against the United States or to give aid and comfort to such an insurrection. This charge was part of the referral from the Jan. 6 committee.

It would have faced some potentially tricky First Amendment issues, to the extent it would have relied on Mr. Trump’s speech at the Ellipse on Jan. 6 to allege that he incited the riot. I believe those issues could be overcome, but the free speech battles over that charge would have been time-consuming and distracting because the speech could be easily characterized as a political rally.

What about the legal profession?

          The legal profession is due for a reckoning. At least five of the un-indicted co-conspirators are lawyers. Dozens of lawyers across the US filed frivolous lawsuits challenging the election. And a leading and respected conservative legal organization—the Federalist Society—appears to be a spawning ground for insurrectionists. Major law firms across the US proudly advertise the membership of their star lawyers in the Federalist Society (and likely pay their dues). And yet, after the events of January 6th, the Federalist Society has done nothing to separate itself from the insurrectionist activities of dozens of its members.

          Dahlia Lithwick and Mark Joseph Stern have authored an article in Slate that addresses the questions about the legal profession raised by the indictment. See Slate, Jack Smith’s Indictment of the Entire Legal Profession. I recommend the entire article by Lithwick and Stern, but found the following passage particularly compelling:

Leading players in the Jan. 6 indictment, including Eastman and Clark, were once luminaries of the Federalist Society, a network of conservative lawyers who hoist one another into positions of power. Yet the Federalist Society has consistently refused to denounce their complicity, or revoke their membership, or even condemn the coup itself.

Instead, the conservative legal movement has welcomed these men—who have expressed no remorse for their actions—back into the fold. Lawyers on the right appear uninterested in exploring how colleagues who were once deemed most likely to succeed have overnight become most likely to be indicted.

Might it be a problem that the movement’s pipeline produced lawyers who fought to prevent the peaceful transfer of power? Might it be a timely exercise in self-scrutiny to try to understand how that transpired?

          Just as we should stop pretending that Trump is a legitimate candidate for the presidency, the legal professional should stop pretending that The Federalist Society is a legitimate organization within the bar. The legal profession should start treating The Federalists as the tool of dark money intent on destroying democracy. No law firm should countenance the continued membership of its lawyers in The Federalist Society.

          On a related note, the DOJ has filed a motion questioning the ability of a lawyer paid by Trump's PACs (Stanley Woodward) to represent multiple defendants and witnesses in the defense secrets case in Florida. See The Hill, DOJ raises conflict of interest issues with Walt Nauta’s attorney in Mar-a-Lago case. Per The Hill,

Stanley Woodward has represented “at least seven other individuals who have been questioned in connection with the investigation,” including those who have testified about Nauta, the DOJ disclosed Wednesday.

          Woodward currently represents Walt Nauta and previously represented Yuscil Taveras, who testified that Walt Nauta attempted to “delete the server” containing surveillance video at Mar-a-Lago. If Taveras testifies to that effect at trial, it would be effectively impossible for Woodward to cross-examine his former client (Taveras) without violating his duties to his former client and to Walt Nauta.

GOP presidential candidates’ response to the indictment: Meh.

          Finally, the most disappointing aspect of the response to the indictment comes from the gaggle of 2024 pretenders to the GOP nomination. The leading candidates trailing Trump—DeSantis, Haley, and Ramaswamy—have either said nothing or have made statements supportive of Trump. See Politico, How Trump's 2024 GOP rivals responded to his third indictment.

          Nothing speaks to the collapse of the Republican Party more eloquently than the collective lack of conscience and backbone among the leading contenders to replace Trump on the GOP presidential ticket.

Concluding Thoughts.

          Jack Smith has delivered a strong indictment. Republicans are attempting to misrepresent what the indictment says (and does not say)—just as Bill Barr misrepresented the Mueller Report. We cannot let them get away with that tactic again. Educate yourself. Read the indictment. United States v. Donald J. Trump (justice.gov). Each of us must be a foot soldier in the information war that is being waged against our nation, Constitution, and democracy.

          Talk to you tomorrow!