Another Troubling Trump Indictment Special counsel Jack Smith’s broad theory of fraud has dangerous implications.
Donald Trump’s post-election behavior in 2020 was deceitful and destructive, and his malfeasance on Jan. 6, 2021, was disgraceful, but was it criminal? That’s the claim in the extraordinary indictment issued Tuesday by a federal grand jury established by special counsel Jack Smith.
Democrats have long sought an indictment related to Jan. 6, but on that score what’s striking is what’s not in the 45-page document. There is no evidence tying Mr. Trump to the Oath Keepers or Proud Boys who planned to, and did, breach the U.S. Capitol that day. That was the worst offense against democracy, and more than 1,000 people have been prosecuted in connection with it.
Yet the indictment offers no new evidence to establish a connection between the riot and Mr. Trump beyond his well-known tweets and public statements. Surely Mr. Smith would have added this to his conspiracy charges if he had found such evidence. Mr. Trump is also not charged with encouraging an “insurrection,” which is the word and charge leveled by the press corps and Democrats.
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Instead the indictment charges one obstruction and three conspiracy counts related to what it claims was a broad effort to overturn the 2020 election based on “dishonesty, fraud, and deceit.” The indictment concedes that Mr. Trump “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.”
In other words, Mr. Trump can lie about the election all he wants. But the indictment says Mr. Trump broke the law when he acted on those lies. Those actions include lobbying state officials to hunt for voter fraud, working with his conspirators to stand up substitute electors in seven states, and trying to persuade Vice President Mike Pence that he had the power to refuse to count electoral votes on Jan. 6.
This is a remarkably broad theory of “conspiracy to defraud the United States,” and one with troubling implications far beyond the fate of Mr. Trump. Mr. Smith’s theory seems to be that if a President and his “co-conspirators” are lying, and then take action on that lie, they are defrauding the U.S.
This potentially criminalizes many kinds of actions and statements by a President that a prosecutor deems to be false. You don’t have to be a defender of Donald Trump to worry about where this will lead. It makes any future election challenges, however valid, legally vulnerable to a partisan prosecutor. And it might have criminalized the actions by Al Gore and George W. Bush to contest the Florida election result in 2000.
Our legal counselors also point to Nixon v. Fitzgerald, a 1982 Supreme Court ruling that the President “is entitled to absolute immunity from damages liability predicated on his official acts.” That was a civil, not a criminal, case. But lobbying his own Justice Department to investigate voter fraud, or even lobbying state officials to find fraud, is arguably within a President’s official duties if he believes fraud occurred.
Mr. Smith alleges and offers substantial evidence that Mr. Trump was frequently told that he lost the election and that there was no provable election fraud. But Mr. Trump was also told the opposite, and he typically resides in a performance artist, fact-free world of his own imagining. Assuming Mr. Trump can find competent counsel, you can expect to hear more about this “absolute immunity” ruling as part of his defense.
None of this is an apology for Mr. Trump’s post-election behavior. These columns have been clear from Election Day that we have seen no evidence that the election was stolen, and that Mr. Trump should have resigned in disgrace after the events of Jan. 6.
But the good news of that day, and of all four Trump years as President, is that America’s institutions held up under great stress. If there was a conspiracy, it was by a gang of misfits. As Mr. Smith’s indictment makes clear, most GOP officials in the states wanted nothing to do with it. Neither did most Trump officials, and Trump-appointed judges ruled against the President’s claims. Mr. Pence was a hero. The conspiracy had no chance of success.
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Yet this indictment, perhaps even more than the others, will by dint of looking back at 2020 roil the 2024 campaign. Democrats want Mr. Trump to be the Republican nominee, and Mr. Smith (whether he intends it or not) is making that outcome more likely.
We will have an election campaign that rotates between courtrooms and rallies. The carnival will make it difficult for other Republicans to be heard. A debate between Joe Biden and Mr. Trump, if they are the nominees, will be over one man’s age and infirmity and another’s attempt to stay out of jail.
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