The Trump Indictment – The Right to Lie is not the Right to Deceive

Will the trial of Donald Trump save American democracy? Hardly. The only thing that can and will save American democracy is the good sense and judgment of the American people

By Anil Madan

A Grand Jury convened by Special Counsel Jack Smith issued an indictment charging former President Donald Trump with crimes relating to his attempts to overturn the results of the 2020 presidential election which he lost.

The ink on the indictment hardly had a chance to dry before a Republican chorus erupted with chants of “witch-hunt,” “politically motivated,” “chills free speech,” and even that Trump should not be prosecuted for relying on the advice of lawyers. These are spurious claims, easily debunked. Nothing in our Constitution sanctions the use of unlawful means to overturn an election. As for free speech, there is a fine line between falsehood and deceit. And, as we have seen, there has always been a thin line between Donald Trump and deceit or chicanery.

Donald Trump indicted for ‘unprecedented assault on American democracy. Pic – AFP

One of the opening paragraphs of the indictment states: “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.”

The indictment charges that Trump, in addition to his repeated false assertions and his use of lawful means to test the validity of the election, pursued unlawful means of discounting legitimate votes and subverting the election results. In doing so, the indictment charges that Trump perpetrated three criminal conspiracies:

a. A conspiracy to defraud the United States by attempting to impair, obstruct and defeat the lawful federal function of collecting, counting and certifying the election result,

b. A conspiracy to obstruct the January 6 Congressional proceeding in which election results are certified, and

c. A conspiracy against the right to vote and the right to have one’s vote counted.

A cautionary tale for a nation that came perilously close to losing its democracy

Aside from its unprecedented nature as the indictment of a former President, the indictment is remarkable in two respects. First, it lists five unnamed — but easily identifiable — attorneys as co-conspirators who amplified and spread Trump’s false claims and lies about the election. These are Rudy Giuliani, John Eastman, Sydney Powell, Jeffrey Clark, and Kenneth Chesebro. A sixth co-conspirator is described as a consultant who helped implement a plan to submit fraudulent slates of electors to obstruct the certification proceeding. Second, the indictment is a deftly crafted document that synthesizes the bits and pieces of evidence we have been hearing over the past 30 months. It is a cautionary tale for a nation that came perilously close to losing its democracy.

False claims and conspiracy

The purpose of the conspiracy was, of course, to keep Donald Trump in power by overturning the legitimate result of the 2020 presidential election. The first count charges Trump with using knowingly false claims to obstruct the congressional certification of the results. The second and third counts charge him with (i) conspiracy to obstruct, and (ii) actual obstruction of a congressional proceeding. The final count is for a conspiracy to interfere with the right to vote.

Trump is charged with making baseless fraud claims and using them as a pretext to push officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favour Trump. In seven different states, Trump and his co-conspirators organized slates of fraudulent electors who had never been selected in the election and had them sign false certifications that they were the legitimate electors.

They caused a letter to be sent falsely stating that the Department of Justice had identified problems with electors in some states. They tried to convince Vice President Pence to reject legitimate electors, accept fake electors, and even send legitimate electors back to states for review by their legislatures. When all this failed, Trump and his co-conspirators falsely told his supporters that Pence had the right to, and might, alter the election results and Trump directed them to march to the Capitol to pressure Pence to do so.

The indictment details the steps that Trump and his co-conspirators took in states such as Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin, to overturn the results of the election and have himself falsely declared the winner.

A more detailed recitation of all the unlawful and fraudulent activities that Trump channeled would add pages to this summary. We should not, however, overlook that Trump lied to Pence and told him that the Justice Department had found major infractions. And when Pence refused to accede to Trump’s berating, or to join in a lawsuit seeking a declaration that he could change the outcome of the election, Trump told the VP, “You’re too honest.”

That Trump was trying to have himself declared the winner is unmistakable. The indictment cites a Trump tweet sent at 1:00 AM on January 6: “, If Vice President @Mike Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!”

Trump is also alleged to have contacted a Senator to ask him to hand-deliver documents to Pence. These were false certifications as to fake alternate electors. A Pence staffer refused to accept these documents from the Senator’s office.

The Freedom of Speech Defense

As mentioned above, one of the “defenses” being floated is that this prosecution violates Trump’s right to free speech, that is, he was entitled to make false statements. The indictment concedes the point that Trump had the right to speak publicly and claim, even falsely, that there had been fraud in the election and that he was the actual winner.

Shouldn’t that then be the end of the case? Trump is acquitted and we move on? Well, not quite.

The problem with the argument is that it is deflection wrapped in sophistry. Whether or not Trump really believed he was the rightful winner of the election, his only recourse was to use lawful means to challenge the results. These include asking for a recount, an examination of ballots for validity, and any other challenge that an election supervisory body or a court might review for compliance with regulations and law. But nothing in our Constitution or laws permits a person to go beyond the lawful processes available to challenge an election or to use unlawful, false, or fraudulent means to do so. The use of slates of fake electors is a case in point. Trump and his co-conspirators knew that the electors had not been appointed by the lawful procedures to be followed in the states at issue. They knew that the certifications they asked the fake electors to sign were false.

The point is that Trump is not being charged for his false belief that he won the election or his false claims that the election was stolen. He is charged with using false statements and methods of intimidation quite separate from his false beliefs to overturn the election results by unlawful means. And he is charged for personally, and through his co-conspirators, pressuring, and berating Pence to perform an illegal and unauthorized act.

The defense is as bogus as a defense gets.

The advice of counsel “defense” is no defense at all. For example, the indictment alleges that

  • co-conspirator 2 (John Eastman) on January 4 acknowledged to Trump’s Senior Advisor that “no court would support his proposal.”
  • co-conspirator 1 (Rudy Giuliani) when challenged to produce evidence of fraud in Arizona stated: “We don’t have the evidence, but we have lots of theories.”
  • Senior White House attorneys selected by Trump to provide him candid advice informed Trump that there was no evidence of outcome-determinative election fraud and told him that his presidency would end on Inauguration Day in 2021.
  • The Director of the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency signed an official multi-agency statement that there was no evidence any voting system had been compromised and declared the 2020 election the most secure in American history. Trump’s response was to fire the Director.

The point is that there is simply no way for Trump to credibly assert that he reasonably relied on the advice of counsel.

It should also not be lost on us that this defense of reliance on counsel is, in essence, a statement by Trump that says: “Okay, so I lied, so what?”

Will Trump prevail in the trial? There is always the danger that even one holdout on a jury can produce a hung jury and no verdict. It beggars belief that a jury listening to Trump’s own words would buy either the free speech or reliance on counsel arguments.

Will the trial of Donald Trump save American democracy? Hardly. The only thing that can and will save American democracy is the good sense and judgment of the American people. In 2020, they rejected the craziness that Trump had built in his four White House years.

Will Trump be successful in playing the victim card? He certainly is trying. If a strong judge holds his feet to the fire and schedules an early trial, the overwhelming evidence of his chicanery, mendacity, and lack of respect for the law and the American constitutional system, does not augur well for Trump.


Mauritius Times ePaper Friday 4 August 2023

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