THE THIRD INDICTMENT OF DONALD TRUMP

This past week, former US President Donald J. Trump was arraigned pursuant to the third criminal indictment brought against him in the past few months. This is, perhaps, the most consequential of the three indictments, since it involves Trump’s refusal to concede defeat in the 2020 election and his repeated attempts to subvert, disregard, corrupt and overthrow the lawful democratic process by which he was defeated as the incumbent candidate.

I feel that there are two ways of looking at this piece of news. One, that it is one of the saddest days in modern American history—though surely no sadder than the events encompassed by the indictment—and, two, that it is the most hopeful day in our most recent history in which democracy and the rule of law have been (and continue to be) under direct attack.

The sorrow encompassed in this turn of events is, basically, that it has come to this. It wasn’t a sudden turning point. It is the end result of a monstrous social experiment that began with Trump’s demagogic election campaign as of 2015 and ended with his refusal to accept the results of what was arguably the most transparent and highly scrutinized election in US history, when he ran for a second term in 2020 and was beaten handily by current President Joe Biden.

That refusal came in the form of his, first, insisting on specific recounts, and then exhausting all legal recourse to try and prove election fraud, which ended with more than sixty courts rejecting his campaign’s false claims, the Supreme Court refusing to hear the case, and his own Attorney General William Barr admitting that, no matter how hard they looked, they could find no widespread fraud. Clearly, no matter how unjustified it might be, that is the legal right of any and all candidates for public office.  And Trump is certainly not the first, and very likely will not be the last candidate to question an election outcome.  

But in the case of Donald Trump, for the first time in US history, when legal action was exhausted, he still refused to concede defeat. From that point on, he initiated—as borne out in recordings of his own voice and words—an active attempt, with the collusion of his campaign and several of his attorneys, to corrupt election officials, to widely spread falsehoods and conspiracy theories which he and his cohorts knew well to be spurious, and to install fake electors parallel to the authentic Electoral College. And finally, when nothing else worked, Trump called on the most fanatical and violent elements in his slavish base to turn out and defend his seditious continuation in power by refusing to allow Congress to certify the true election results. This incitement ended in the historic and now infamous January Sixth 2021 attack on the Capitol, violating the sanctity of one of the nation’s most basic institutions, and endangering the lives of lawmakers including Trump’s own Vice President Mike Pence in his role as Senate president. This spurred an hours-long insurrection in which at least five people died as a direct or indirect result of the violence—this does not include four Capitol Police officers who later took their own lives as a consequence of the mental and physical trauma they suffered—and in which at least one hundred fifty people were seriously injured (the vast majority police). The attack also resulted in at least a million and a half dollars in damages to the Capitol itself.

While these facts are well-known to the general public, they bear frequent reiteration, since again and again, Trump sycophants in Congress and elsewhere have sought to minimize the events of January Sixth, which, with the exception of the American Civil War, was the most serious and violent attack on US democracy in the nation’s history. These include high-profile Republican politicians who, in the immediate aftermath of the insurrectionist violence, heaped scathing criticism and blame on the former president, characterizing the riot as the grave upheaval that it was, only to later recant in accordance with their own personal and party convenience and proportionate to their cold-sweat cowardice in the anticipation of retaliation from Trump and his radicalized base.

But hope springs eternal, as Alexander Pope once wrote, and the upside of what is an otherwise sad day, is that the rule of law, which Donald Trump has so sorely disrespected with the necessary collusion of far too many right-wing politicians in Congress, and of the GOP leadership in general, is apparently alive and well. None other of the indictments against Trump so far is more significant of this fact than the one leading to the former president’s formal arraignment last week for his part in attempts to unlawfully overturn the results of the 2020 presidential election and to remain in office as a de facto president.

While Trump and many of his enablers continue to disrespect this process, in their persistence in deluding the most blindly loyal and gullible of the former president’s followers—even while, without a doubt, knowing that what they are telling those Trump fanatics is patently false—both the Justice Department and, in particular, Special Counsel Jack Smith have been nothing if not transparent and meticulous in the pursuit and presentation of their case.

Special Counsel Jack Smith

The indictment handed by Smith to the Federal Court in Washington DC is a faithful reflection of the legal efficacy and scrupulousness with which the prosecution is presenting the case. Smith and his team have penned their charges in the clearest and simplest terms possible. The Special Counsel has, additionally, invited the public at large to read the indictment, knowing full well that the basis for criminal proceedings against the former president will, through its reading, become crystal clear to anyone but the most indoctrinated and disingenuous of Trump supporters. 

It is worthwhile noting that Smith has prudently avoided, at least for the moment, prosecution of Trump’s undeniable part in the January Sixth Insurrection itself. That might well take shape as a separate indictment in the future. But for right now, Smith is concentrating entirely on trying the former president for using his powerful office to perpetrate election fraud and to coopt the civil rights of voters who opposed his candidacy and won, as well as conspiring to spread disinformation among his followers. As Princeton political history professor Julian Zelizer pointed out this past week in an interview with CNN, it’s important to note that “this isn’t a question of presidential power, but of presidential abuse of power.”

The fact that those efforts to steal the election would indeed spark a violent insurrection, which Trump unquestionably egged on, and that claimed lives and destroyed property, is an issue that is being left for another day. It is a prosecutorial strategy that appears wise, since the soundest of proof gathered pertains to efforts by the former president and his lieutenants to falsify an election win, while his responsibility for the insurrection itself will require a much more meticulous case-building effort, despite the fact that many of the perpetrators already convicted and sentenced have made it clear that they truly believed that they were answering a call to battle by the former president.

As someone who, in my work as a researcher, translator, ghostwriter and editor, has frequently been called on to write up simplified executive summary versions of particularly dense legal and political documents, I can tell you, without the least doubt, that my services would have been required by no one reading this forty-five-page list of charges. Smith has taken great pains to eschew legalese and to present the case in layman’s terms and in the most starkly plain sentences possible. It is, without a doubt, an impeccable piece of writing in the common American vernacular.  Plain English, in other words.

As part of their strategy to plant overwhelming doubt in the minds of Trump’s supporters, his enablers among the GOP leadership have sought to convince the public that the former president can’t possibly get a fair trial in Washington DC. And yet, there could be no more natural place for it to occur. The court is the same one that has already successfully tried and either convicted or released a number of the active participants in the January Sixth rioting. Furthermore, Washington is the seat of the federal government of which Trump is the former head. And it is the place where the bulk of the felonies described in the indictment were allegedly perpetrated. Finally, as the nation’s capital, it would seem the appropriate venue in which to try crimes perpetrated not only against Congress but also against the people of the United States as a whole. If the former president’s attorneys should ask for a change of venue—and it seems likely they will—it is, then, highly unlikely that the court will grant the defense such a request, nor should it.

Donald Trump, like any other citizen called before a court of law, is innocent until proven guilty. This case will indeed demonstrate that fact, since no effort is being spared to guarantee the civil and legal rights of the former president. Beyond the courtroom—where nothing can be assumed or taken for granted—however, there is not just what the prosecution can prove or what the defense can challenge under the rule of law, but what we, as citizens, know to be facts and what we can see with our own two eyes and hear with our own two ears. And federal court action will be very different in securing justice than the two impeachment proceedings brought against Trump during his presidency, where actions were quashed in accordance with partisan considerations and rivalries rather than based on the overwhelming evidence. It is the job of the prosecution, the jury and the judge to try and decide the case based on hard facts, not on whether the decision will alienate one party or another, or whether one party has more votes than the other and can prevent the opposing force from prevailing.

Whether it can be proven in court or not, however, is not the concern of those of us who objectively know what we’ve seen and heard.  And what we have seen and heard is this:

·        A president who, for the first time in history, took seditious actions that put his own personal and political interests above American democracy and the rule of law.

·        An incumbent president who, after failing to prove his claims of election fraud in dozens of courts, decided to take the law into his own hands, refusing to accept the authentic results, to concede to his rival, or to voluntarily leave office.

·        A president who hired a group of unmitigatedly crooked and lunatic lawyers to spread a false narrative of a stolen election, of adulterated results and of tampered-with voting machines, none of which ever existed, as proven repeatedly in the courts and in numerous recounts.

·        An incumbent president who countenanced the creation of fraudulent lists of fake state electors in an attempt to overturn his clear and definitive loss in the Electoral College.

·        A president who seriously contemplated the unsound advice of a disgraced general and several other advisers that he could declare martial law and rule by force—with only the honor and stability of the armed forces chiefs preventing him from doing so.

·        A president and his attorney’s calls to election officials in at least two states seeking to get them to invent election results that would make Trump the winner, even when he legally and demonstrably wasn’t.

·        A former president who has yet to concede defeat, years after his loss, either because he is being feloniously disingenuous or because he has lost touch with reality and believes his own narcissistic fantasy in spite of abundant proof to the contrary.

·        An incumbent president who, as one of his final acts as chief executive, fueled a massive and violent demonstration of his own making and then refused for hours on end to defuse the situation, despite a virtual state of siege in Congress and serious threats to the lives of police, of members of Congress and of his own vice president.

·        A former president who continues to show no remorse, and who, in fact doubles and triples down, blaming everyone but himself for the serious legal jeopardy that he is facing, backed by palpable evidence of more than seventy felony counts, the validity of which will be tested in courts of law where he will have a chance to redeem himself, but is unlikely to do so.

Sidney Powell, General Flynn, Rudy Giuliani,
the lunatic fringe...

Allies of former President Donald Trump have rushed to his defense since he was charged Tuesday in connection with his efforts to overturn the 2020 election.

They inaccurately attacked the judge assigned to oversee the trial, baselessly speculated that the timing of the accusations was intended to obscure misconduct by the Bidens and misleadingly compared Trump’s conduct to that of Democratic politicians in somewhat, but nor entirely, similar situations—I say “somewhat” because the case of Trump is unprecedented in US history.

The most egregious of these claims came, disgracefully, from the Speaker of the House, Kevin McCarthy, who disingenuously, sought to compare Trump’s conduct to that of other candidates who, in the past, have questioned the results of close elections. He mentioned, in particular, Jimmy Carter, Al Gore and Hillary Clinton—biasedly overlooking Republican Richard Nixon’s complaints about John F. Kennedy’s narrow win. McCarthy indicated that Trump was being pilloried for something that was his right—to question election results—while nobody was mentioning the other three times where candidates did the same. The indication being that it was a Democrat versus Republican thing.

Speaker of the House Kevin McCarthy

Clearly, that is not the case. For one thing, 2020 was not, by any stretch of the imagination, a close call. And it should be pointed out that in those other three cases, the results were questioned, the challenges ruled invalid, and all three candidates accepted the outcome, conceded defeat and fully supported the peaceful transfer of power. Trump is the first president in history who hasn’t.

No one, least of all Jack Smith or the federal court, is questioning Trump’s right to challenge the election results by all legal means—which, again, he has done and failed. Rather, what is being questioned and charged is, first of all, the potentially felonious behavior of a former president who sought to overturn an election by illegal means, and second, whether McCarthy and his party are really willing to subvert US institutions and the rule of law in order to defend the indefensible and render tribute to a cult of personality.