Indictment Redux
Is being a reckless, dishonest, narcissistic, loud-mouth sore loser a federal crime?
Yesterday, special counsel Jack Smith announced his second indictment of Donald Trump related to the attempts to overturn the outcome of the 2020 election, charging him with four criminal counts:
• Conspiracy to Defraud the United States
• Conspiracy to Obstruct an Official Proceeding
• Obstruction of and Attempt to Obstruct an Official Proceeding
• Conspiracy Against Rights
As I said when Smith’s first indictment was released, it is always best to first read it yourself rather than simply relying on the opinions and observations of others, whether those observations are from former prosecutors or legal ignoramuses like yours truly.
The Associated Press published the indictment in its entirety HERE.
I skimmed through it early this morning but didn’t have time to get into the details. So after I finished my freelance work, I sat down and read all 45 pages.
I was left with two impressions.
First, after reading everything that Donald Trump and his campaign did and claimed from November 2020 until January 6, 2021, I can only conclude that Donald Trump should never be allowed to step foot in the White House again, even to go on a tour.
Second, speaking as a layman, while I found the details of Trump’s actions repugnant and disgusting, I don’t see how any of it amounts to criminal behavior.
Yes, Donald Trump lied. What’s more, he continued lying even after he was repeatedly told that his claims were false.
Does that make him a venal piece of shit?
Yes!
But is that a felony?
That part, I’m not so sure about.
When I read the point-by-point timeline of the meetings, messages, and discussions surrounding the scheme to have Mike Pence reject the electors on January 6, it astonished me that Donald Trump deliberately ginned up the crowd by repeatedly claiming that Pence would come through for them, even after Pence previously told him on several occasions that he wouldn’t.
That’s just shitty.
Donald Trump knew the whole time he was peddling false hope to his supporters that Mike Pence was not going along with his crackpot scheme.
Is it any wonder when Pence released a public statement just before 1:00 pm on January 6 saying he did not have the authority to unilaterally “determine which electoral votes should be counted and which should not” that the crowd outside of the Capitol began baying for his blood?
I’ll be honest, this indictment is not pleasant reading. Jack Smith definitely makes the case that Donald Trump is a reckless, narcissistic asshole.
But being a reckless, narcissistic asshole is not a federal crime.
And, see, that’s my point.
I already knew that Trump was a reckless, narcissistic asshole.
Then again, after reading the facts laid out in the indictment, I realized that my criticism of Donald Trump didn’t go far enough.
He is even more of a dishonest, loud-mouth sore loser than I thought.
But is being a dishonest, loudmouth sore loser a federal crime?
That’s the part that trips me up here.
The special counsel isn’t charging Trump with incitement, so ginning up the crowd by first falsely claiming that Mike Pence was going to come through for them before complaining about Pence after he publicly stated that he wouldn’t certainly makes for horrifying reading, but how is it germane to the charges included in the indictment?
I get the impression that Smith included every monstrous detail, not to make his case but to remind everyone that Donald Trump is unfit to serve as president.
But is being unfit to serve as President of the United States a federal crime now? Because if it is, our federal prisons would be seriously overcrowded.
After I finished reading the indictment, I went to see if law professor Jonathan Turley had anything to tweet about it since he is one of the few Twitter attorneys I trust.
Here’s what Professor Turley said:
Special Counsel Jack Smith just issued the first criminal indictment of alleged disinformation in my view. If you take a red pen to all of the material presumptively protected by the First Amendment, you can reduce much of the indictment to haiku.
I felt that the Mar-a-Lago indictment was strong. This is the inverse. This is closer to the case against former Virginia Gov. Bob McDonnell where Smith was overturned by an unanimous Supreme Court.
The press conference held by Smith only deepened the unease for some of us. Smith railed against the January 6th riot and made it sound like he was indicting Trump on incitement. He didn't. The disconnect was glaring and concerning.
Again, I’m not a lawyer. I’m just a gal with a Master of Fine Arts in Dramatic Writing. But having read the indictment myself, I agree with Jonathan Turley.
After checking in with Professor Turley, I went over to check former federal prosecutor Andy McCarthy’s Twitter feed and saw that he tweeted an editorial from National Review titled, “This Trump Indictment Shouldn’t Stand.”
In a nutshell, the editorial argues that the special counsel indictment amounts to an Impeachment do-over with Smith trying to get the conviction that the Senate fell three votes short of getting.
Here are a couple of salient pull quotes:
Now, through a special counsel it appointed for this precise purpose, the Biden Justice Department is attempting to use the criminal process as a do-over for a failed impeachment. In effect, Jack Smith is endeavoring to criminalize protected political speech and flimsy legal theories — when the Supreme Court has repeatedly admonished prosecutors to refrain from creative theories to stretch penal laws to reach misconduct that Congress has not made illegal.
And this:
Whether misconduct rises to the level of an impeachable offense is indefinite, left to the people’s representatives to assess based on what the facts and circumstances say about a public official’s fitness for duty. Criminal offenses are the antithesis of that. They must be defined by statute with sufficient clarity so that the average person knows what is forbidden, and a defendant is presumed innocent. A guilty verdict must be supported by proof beyond a reasonable doubt — proof not only that the person performed the statutorily prohibited acts, but also did so knowing that his conduct was illegal.
Here, it is not even clear that Smith has alleged anything that the law forbids.
[Sic]
Mendacious rhetoric in seeking to retain political office is damnable — and, again, impeachable — but it’s not criminal fraud, although that is what Smith has charged. Indeed, assuming a prosecutor could prove beyond a reasonable doubt that Trump hadn’t actually convinced himself that the election was stolen from him (good luck with that), hyperbole and even worse are protected political speech.
Boy, this editorial articulates my thoughts far better than I did.
It concludes with this:
There is a reason Smith does not have a solid statutory crime to rely on. To criminalize the conduct for which he seeks to convict Trump, Congress would have to write sweeping laws that could easily be wielded by one party against another to punish objectionable political conduct. That would undermine both electoral politics and the rule of law.
Echoing my take from this indictment, yesterday, National Review editor Philip Klein observed on Twitter:
The indictment reinforces my pre-existing belief that Trump’s post-election behavior makes him totally unsuitable to ever be president again. It does not convince me that his actions were illegal.
Precisely.
If you already decided that Donald Trump’s behavior after the 2020 election was contemptible and unbefitting a President of the United States, if anything, reading every sordid detail will only make you realize that you underestimated how contemptible Trump is.
But an honest person who doesn’t let preconceptions get in the way of critical thinking will notice that, for a criminal indictment, there simply is no “there” there.
At the same time, it’s worth remembering that this case will be heard in the US District Court of the District of Columbia before a jury of DC residents, 95% of whom despise Donald Trump. So the lack of a criminal case may not prevent Smith from securing a conviction on at least one of the four counts.
Would a conviction stand on appeal?
Maybe not.
But in the short term, does it matter?
Whether the case is air-tight or nothing but ResistanceLOL Porn for the anti-Trump media to swoon over, it is still more baggage that Donald Trump has to haul behind him in the 2024 election.
As I said after the first DOJ indictment:
Someone who truly puts America First would have enough self-awareness to know that his mountains of baggage have made him a liability. But Trump doesn't put America First. Loyalty to him must always trump loyalty to America.
He won't go away of his own accord. Only voters can send him packing.
Nothing about this second indictment, however flimsy it might be, makes me come to any other conclusion.
If anything, the details included only confirm my belief that Donald Trump isn’t fit to be the Republican nominee.
We can stop the looming disaster by selecting another Republican as the GOP nominee.
Doing that would deprive the Democrats of their most valuable weapon well before the General Election. What’s more, without Trump at the top of the ballot dragging down every other Republican running in 2024, we stand a chance of not only retaking the White House, but keeping the House and winning the Senate.
Wouldn’t that be preferable to making 2024 a referendum on the most hated man in America?