The latest criminal indictment of Donald Trump accuses him of orchestrating three criminal conspiracies arising from his efforts to overturn the results of the 2020 election:
- a conspiracy to defraud the United States by impeding the counting and certification of election results
- a conspiracy to impede the January 6 congressional certification proceeding
- a conspiracy against the right to vote and to have one’s vote counted
Most of the facts about the former president’s behavior are not in dispute. They were laid out in the report of the House Select Committee, which I reviewed last January. The record shows that Trump and several close associates tried to get state election officials to revise their vote counts, recruited alternative electors to replace Biden electors, urged the Justice Department to notify the states of alleged election irregularities and discourage them from certifying the results, and tried to get Vice President Pence to reject certified electoral votes from the states.
Trump’s defense will almost have to lie in the realm of intent rather than behavior—“mens rea” rather than “actus reus” in the language of the law. He will have to argue that he sincerely believed the election results to be fraudulent, and that he followed the advice of counsel in his efforts to challenge them. He cannot have had criminal intent because he was acting in good faith. But the indictment asserts just the opposite, that he made “knowingly false claims” about the election and engaged in clearly “unlawful means” in order to change the outcome.
Criminal intent
For most of us, the protestations of innocence by the former president and his supporters would be much more convincing if he had a better reputation for being an honest man. The fact that he is widely regarded as a habitual liar, whose public statements are riddled with exaggerations, distortions and outright fabrications, does not help his cause.
In a criminal case, however, the general reputation of the accused is not the issue, but his intentions with regard to the specific matter at hand. Was he sincerely seeking a true election outcome, or was he conspiring to obstruct one by means of deliberate deception? The jury will have to decide.
Much of the indictment consists of state-by-state descriptions of Trump’s effort to find voter fraud where hardly any evidence of it existed. The margin of victory in the most contested states ranged from 10,457 votes in Arizona to 154,188 in Michigan. None of those states could find anywhere near enough cases of fraudulent voting or miscounting to change the outcome. The indictment provides an impressive list of knowledgeable officials—most of them Republicans—who informed Trump that he had lost the election. These included the Vice President, senior leaders of the Justice Department, the Director of National Intelligence, The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, senior White House attorneys, senior campaign staffers, state legislators and officials, and state and federal courts where Trump filed suit.
Trump continued to repeat specific claims of fraud even after he was informed they were not true. For example, he continued to claim that over 10,000 dead people had voted in Georgia. A senior advisor said that he thought the actual number might be twelve. The Georgia Secretary of State told the president it was two. On some occasions, the President acknowledged privately that claims were unsupported, but repeated them in public anyway.
One of those named as a co-conspirator was a Justice Department lawyer named Jeffrey Clark. He prepared a letter claiming that the Department had strong evidence of voter fraud and recommending that states reconsider their election certifications. He shared the letter with the President without the approval of the Acting Attorney General, in violation of department policy. When Trump was informed that the letter was inaccurate, his proposed response was to send it anyway by putting Jeffrey Clark in charge of the Justice Department. “The Defendant relented in his plan to replace the Acting Attorney General with Co-Conspirator 4 only when he was told that it would result in mass resignations at the Justice Department and of his own White House Counsel.”
Perhaps the most blatantly illegal scheme was to replace state-certified Biden electors with Trump electors in seven states—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin. It began as a proposal to have alternative electors available in case the effort to get Biden electors decertified would succeed. It soon became a scheme to submit the alternative electors to Congress whether they could be certified or not—none of them ever were—giving Vice President Pence an excuse to reject the real electors. That scheme then fed into the plan to have the Vice President either declare Trump President or throw the election back to the contested states. Pence told Trump in no uncertain terms that he had no authority to do any of this, but on the evening before January 6, Trump issued a statement, “The Vice President and I are in total agreement that the Vice President has the power to act.” He had to know that this was a flat-out lie. Then in the middle of the Capitol riot, Trump tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” a statement that made the Vice President a target of the mob’s anger.
These are not the action of a truth-seeker acting in good faith. They are the actions of a man who rejected any evidence that contradicted the story he wanted to tell, and enthusiastically embraced any claims—no matter how fanciful—that advanced his self-serving agenda. Let’s not forget that Trump announced before the election that he could only lose by fraud, and also declared victory before all the votes had been counted. That reveals a disregard for the will of the electorate and a willful refusal to accept any result that fails to satisfy his outsize ego. These are the attitudes of a would-be dictator, not a democratic servant of the people.
A larger web of deceit
What may be even more distressing than Donald Trump’s conspiratorial behavior is his continued popularity within the Republican Party. Despite the fact that Republicans in key positions refused to cooperate with his scheme, the majority of the party have continued to support him. He remains the runaway leader for the Republican nomination in 2024. Most Republicans continue to accept two big lies, that Joe Biden stole the 2020 election, and that the investigation into Donald Trump is nothing but a partisan witch hunt.
To me, this points to a larger problem, that the G.O.P. is rife with leaders who are willing to mislead, followers who are willing to be misled, and right-wing media organizations that profit from telling their viewers whatever they want to hear. I believe that this is related to the tendency of Republican policy positions to become increasingly divorced from reality, as the party continues to deny climate change, downplay systemic racism, and insist that tax cuts are always good for the economy, among other things. For more on the state of the Republican Party, see my series of posts on “Whatever Happened to Republicans,” especially Part 4.
Even if Donald Trump should be convicted and sentenced to prison, we should be prepared for Trumpism to endure unless and until the Republican base has a change of heart. Someday they may insist on leaders who address their legitimate concerns, not gain their votes through manipulation and deceit.
Beneath the Surface 