“Today, an indictment was unsealed . . . .”

August 2, 2024

          At 7:14 PM EDT on August 1, 2023, special counsel Jack Smith strode to a lectern in Washington, D.C., opened a folder, and said, “Today, an indictment was unsealed . . . .” With those plain words, Jack Smith announced the most remarkable legal proceeding in the history of our nation. The indictment (US v. Trump) alleges that a former president of the United States attempted to prevent the peaceful transfer of power between presidents—the hallmark of American democracy.

          Smith cut to the quick of the indictment in his brief remarks, saying:

The attack on our nation’s Capital on January 6, 2021, was an unprecedented assault on the seat of American democracy. It was fueled by lies, lies by the defendant.

          And the indictment cuts to the quick of the injury inflicted by Trump: It alleges that Trump engaged in a conspiracy “against the right to vote and to have one’s vote counted.”

          There it is: Trump attempted to deny the American people the right of self-determination. If that right is abrogated, a free people become vassals of an authoritarian state that exists to perpetuate itself rather than serve the people.     

          In its economy and focus, the indictment lays bare Trump's betrayal of the Constitution and the American people. In damning Trump with words of one syllable, it seeks to persuade the jury that will determine his guilt and the American people who will determine his fate.

          The indictment is the product of deep strategic thinking. Jack Smith seeks a conviction before the 2024 presidential election. To increase the likelihood of that outcome, the indictment charges a single defendant—Donald Trump. The indictment alleges that Trump was assisted by six un-indicted co-conspirators—five attorneys and one political consultant who can (and will) be tried later.

          In charging a broad conspiracy involving six un-indicted co-conspirators, Smith will be able to use the statements of the seven co-conspirators against one another. The indictment bristles with incriminating admissions and confessions of guilty knowledge by inept and clueless amateurs whose proximity to the presidency caused them to take leave their senses.

          The indictment deftly seeks to hold Trump accountable for the violence on January 6th without assuming the burden of proving he incited the violence. Rather, the indictment alleges that Trump exploited the violence by using it as an excuse to justify the unlawful delay necessary for the false electors plot to succeed.

          The indictment focuses on the false electors’ plot, one of the most straightforward and easily provable elements of Trump's attempted coup. The indictment does not seek to hold Trump directly accountable for inciting the violence—a difficult proposition to prove.

          On August 2, 2023, Americans who yearn for justice and accountability should feel buoyed by the powerful indictment against Trump. We have much to be grateful for, including the following:

• That Merrick Garland chose Jack Smith to prosecute Trump;

• That Jack Smith and his staff (attorneys and FBI agents) acted with the urgency and dispatch appropriate after an attempted coup—and before a threatened second coup.

• That former Speaker Nancy Pelosi had the foresight to proceed with a select committee to investigate the events of January 6th over objections from House Republicans.

• That the dedicated members of the House J6 Committee (and their staff) presented an overwhelming case of Trump's guilt to the American people.

• That state prosecutors and civil litigants in Georgia and New York pursued justice against Trump when it appeared that federal prosecutors temporized.

• That the men and women who defended the Capitol on January 6th were able to hold the line long enough for the coup plotters to lose their nerve. As Jack Smith said of the law enforcement officers who defended the Capitol, “They are patriots and they are the best of us.”

          The indictment is momentous. It should speak for itself and deserves to be read in full by you. Indeed, it is your civic duty to do so. The indictment is here: US v. Trump. It is eminently readable. To whet your appetite, here is the introduction:

1.    The Defendant, DONALD J. TRUMP, was the forty -fifth President of the United States and a candidate for re-election in 2020. The Defendant lost the 2020 presidential election.

          2. Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3,2020, Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But Defendant repeated and widely disseminated them anyway to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.

          3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.

Early analysis of the indictment by legal commentators.

          We will spend months and years reviewing the indictment. The early analysis started to arrive on Tuesday evening. A good place to start is with the question of whether it is in the interest of the nation to prosecute a former president for resisting the peaceful transfer of power. It is. See Ruth Marcus op-ed in WaPo, Prosecuting Trump is perilous. Ignoring his conduct would be worse. Marcus writes,

There is a reasonable argument to be made that Trump is already facing criminal charges for his behavior in other matters and proceeding against him on the suite of election-related offenses is unwise and unnecessary.

I disagree, and reading Tuesday’s indictment bolsters that conviction. The Mar-a-Lago indictment charges a separate set of crimes: illegal retention of national defense information and obstruction of justice. These are serious allegations, but to say that their existence obviates the need to prosecute Trump for his efforts to prevent the peaceful transfer of power is akin to arguing that it is not essential to bring murder charges if the putative defendant is already accused of armed robbery.

Prosecuting Trump on these charges is a grave, even perilous, step. Condoning his behavior by ignoring it would be far worse.

          As usual, Ian Millhiser of Vox has taken a deep dive into the legal nuances of the indictment. Trump is charged with obstructing an official proceeding (the congressional count of electoral ballots), a charge on which dozens of J6 defendants have been convicted. But the Supreme Court has never considered the issue of whether the “obstruction of an official proceeding” statute requires that the defendant also “destroy, alter, or mutilate” a document as part of the effort to obstruct a proceeding. If the reactionary majority is looking for a basis to overturn the “obstruction of a proceeding” charge, it might have a toehold to do so. See Ian Millhiser, Vox, Trump indictment: How strong are the criminal charges against Trump in the Jan. 6 case?

          Dennis Aftergut takes a high-level look at the strategic decisions embedded in the indictment. See Slate, Jack Smith’s Jan. 6 trump indictment is a prosecutorial masterstroke. Aftergut notes that Jack Smith has drafted a streamlined indictment that has a decent chance of resulting in a trial before the 2024 election:

[T]his indictment, going before D.C. District Judge Tanya S. Chutkan, a President Barack Obama appointee, may well have a better chance of going to trial before the 2024 election. This trial will not involve all the complications and likely delay that dealing with classified documents entails. And virtually every fact cited in the indictment goes to all four charges, elegantly simplifying the government’s task of proving each.

          Josh Kovensky of Talking Points Memo provided background on the federal judge who will oversee the trial of the case, Judge Tanya Chutkan. Per Kovensky,

Chutkan, an Obama appointee, has handled a lot of January 6 cases already, and taken a distinctive approach to them, often handing out sentences to rioters that are tougher than those asked for by prosecutors. “It has to be made clear that trying to violently overthrow the government, trying to stop the peaceful transition of power and assaulting law enforcement officers in that effort is going to be met with absolutely certain punishment,” she said while sentencing one Jan. 6 defendant in December 2021.

          To the extent that Trump is hoping for sympathetic rulings from Judge Cannon in the defense secrets case, he should harbor no such hopes before Judge Chutkan in the January 6th case. Judge Chutkan has a reputation for being a “down the middle” judge who treats all litigants fairly. But Judge Chutkan famously wrote in an opinion regarding Trump's assertion of executive privilege that, “Presidents are not kings, and Plaintiff is not President.”

That should cause Trump to quake in his boots—and give every American hope that finally, at long last, Donald Trump will be required to answer for his crimes before a firm but fair judge who will not tolerate his bombast.

Concluding Thoughts.

          Before the J6 indictment was released on Tuesday, major media were giving non-stop coverage to a Times/Siena poll that shows a tie in support for Biden and Trump in the 2024 presidential election. Ignore the poll, which asks dozens of questions that “prime” the respondents to make judgments about the incumbent president’s performance that have no corresponding question for the challenger (Trump). Worse, the poll presumes that Trump is a normal candidate for president. Not so. When voters walk into the polling booth in 2024, they will be asked to make a choice between Biden and Trump, democracy and autocracy, liberty and theocracy.

          Indeed, as today’s indictment makes clear, it is illogical to discuss Trump as a “candidate” for the presidency. He is a “candidate” only to avoid going to prison. For complicated reasons, lots of Americans believe that keeping Trump out of prison will improve their lives. They are wrong, and probably know it. But they will vote for Trump, nonetheless, without regard to the potentially devastating consequences for our nation.

          Tom Nichols wrote a terrific piece in The Atlantic that addresses the gravity of the choice that faces all Americans in 2024. See The Atlantic, This the Trump Indictment That Really Matters. I urge everyone to read Nichols’s essay for a much-needed jolt of determination and swagger heading into 2024.

          Nichols starts by addressing Republicans who must squint through both eyes and turn their head sideways to see a way clear to supporting Trump despite misgivings:

Republicans now, more than ever, face a moment of truth. They must decide if they are partisans or patriots. They can no longer claim to be both.

          As for the rest of us (and the pollsters at Times/Siena), Nichols says that we must stop pretending that Donald Trump is a normal candidate for president and stop tiptoeing around his depravity and criminality:

The rest of us, as a nation but also as individuals, can no longer indulge the pretense that Trump is just another Republican candidate, that supporting Donald Trump is just another political choice, and that agreeing with Trump’s attacks on our democracy is just a difference of opinion.

This is why we can no longer merely roll our eyes when an annoying uncle rhapsodizes about stolen elections. We should not gently ask our parents if perhaps we might change the channel from Fox during dinner. We are not obligated to gingerly change the subject when an old friend goes on about “Demonrats” or the dire national-security implications around Hunter Biden’s genitalia.

Enough of all this; we can love our friends and our family and our neighbors without accepting their terms of debate. To support Trump is to support sedition and violence, and we must be willing to speak this truth not only to power but to our fellow citizens.

We face in Trump a dedicated enemy of our Constitution, and if he returns to office, his next “administration” will be a gang of felons, goons, and resentful mediocrities, all of whom will gladly serve Trump’s sociopathic needs while greedily dividing the spoils of power.

          The J6 indictment against Trump compiles overwhelming and incontestable evidence of Trump's concerted effort to subvert the will of the people by use of violence. We cannot pretend that anything he says during the campaign has any political meaning beyond keeping Trump out of prison. We must speak up and speak out—and stop apologizing for speaking the truth. Trump is a criminal and an enemy of the Constitution. He has proven so in word and deed. While we must sharpen our messaging about the positives of the Democratic Party, we must simultaneously become more aggressive and unapologetic about speaking the truth about Donald Trump. Reading the indictment is a good place to start. US v. Trump.

          Talk to you tomorrow!