WASHINGTON—Before, during, and after January 6, 2021, Donald Trump, knowing he had lost the 2020 election, planned and attempted a coup against the U.S. government aimed at overturning the vote. The federal indictment that dropped Tuesday is the most serious criminal indictment issued by the federal government in the history of the nation.
Special Counsel Jack Smith said the Trump crimes involved not just the coup but an elaborate attempt to steal from the American people their right to vote, as he plotted, among other things, to enlist fake electors that did not represent the choice of the people in the states from which they came. His crimes, according to Smith, were “an unprecedented attack on American democracy.”
The indictment contained information not yet heard about the shocking attempts by Trump to reverse his defeat. One section describes in detail a private meeting with Chief of Staff Mark Meadows and Vice President Mike Pence during which Trump, mafia style, threatened Pence after he refused to go along with blocking Congressional certification of the vote.
Trump telling Pence he was “too honest” at that same meeting adds to the evidence that Trump knew he had lost the election. The ex-president followed up that remark with an explicit threat against Pence, according to the indictment. Meadows was so concerned about the safety of the Vice President that, after the meeting, he alerted the Secret Service that the physical safety and life of Pence could be threatened.
That danger materialized on January 6 as violent Trump mobs descended on the Capitol in which Pence was present, shouting, “Hang Mike Pence!” They erected a noose and scoured the hallways looking for the Vice President.
Pence, who is looking for the GOP nomination for the presidency himself in 2024, has been reluctant to attack his former boss, who is far ahead in the polls of GOP primary voters. Nevertheless, after the indictment dropped, Pence said, “No one, even an ex-president, is above the law, and…no one who disregards the Constitution should ever serve in that office.” Pence has to figure out a way of getting on the right side of history, especially since he could end up, thanks to the smart work of Smith, being a star witness against the ex-president.
The Special Counsel unveiled Tuesday a four-count grand jury indictment against the former Republican Oval Office occupant.
The first count is conspiracy to defraud the United States, the second is for disrupting an official proceeding (the certification by Congress of the Biden election), and the third count is for actual obstruction of that proceeding.
The fourth count, conspiracy against rights, is perhaps the most important accusation regarding Trump’s attack on democracy. It says that Trump tried to obliterate the right of the people to cast their votes. It reads: “The Defendant, Donald J. Trump, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to injure oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States – that is, the right to vote, and to have one’s vote counted.”
Included in the 45-page indictment is a description of how Trump involved an “agent,” a U.S. Senator, in the scheme to set up slates of false electors designed to throw out Biden’s victories on the state level. It also shows how, for hours after the ex-president finally told rioters at the Capitol to go home. He had his top acolytes, including Rudy Giuliani, calling into the states Trump did not win to cement that scheme and have lawmakers take over the electoral process in their states with the aim of declaring Trump the victor. It was a desperate attempt to hold off the eventual certification of the Biden victory late on the night of Jan. 6. It proved, again, his full intention to overturn the results of the election and steal the legitimate votes of American voters.
The Congress was determined to go ahead that night with certification, despite the fact that the mob attack derailed them when they were in session. Determined to stop them from reconvening to certify the election, Trump, also on the evening of Jan. 6 before Congress reconvened, ran a coordinated scheme to involve Senators in an attempt to hold off the certification.
He and his minions called a total of at least five senators to get them to vote against certification, hours after the attacking mobs were dispersed. At 7:01 p.m. that night, White House Counsel was begging Trump: “Stop, Enough, Withdraw.” Trump refused and continued the effort to strong-arm lawmakers for at least 15 minutes longer.
Somewhat lost in all the news since Tuesday was the importance of the role played by both Rep. Bennie Thompson, the African-American chair of the Jan. 6 Congressional Committee, and former Speaker of the House Nancy Pelosi. Most of the information in the indictment, if not testimony from some key players, was already known to the public because of the hard work of the Jan.6 Congressional Committee.
Of course, some of those who refused to testify before the House Committee had to come forward in the Smith investigation. He had advantages the House Committee did not. Nevertheless, the Thompson committee laid the groundwork for the DOJ investigation. Credit goes to Pelosi, too, who formed the committee, despite Republican refusal to set up a bi-partisan panel. She enlisted Republican Reps. Adam Kinzinger and Liz Cheney to serve on the committee, however. Thompson noted Tuesday that his committee “created a path for the Justice Department to follow.”
Public trial necessary
A major issue with the coming trial is whether or not the public will see it. The historic issues involved demand that the trial be televised. A nation that can televise the O.J. Simpson trial can do no less with this trial. The Chief Justice of the Supreme Court can order that it be televised, but many don’t place much hope in that because of his Republican leanings. In Washington, D.C., under certain circumstances, the court can allow television cameras in trials. Hopefully, there will be a groundswell of demand that the trial will be open to the public, who are entitled to see the details of how a former president tried to destroy their democracy.
The African-American poll workers in Georgia, Ruby Freeman, and Shaye Moss, deserve this, too, even though it cannot make up for the ruination of their lives resulting from false Trump charges that they were adding a suitcase of fake Biden votes to the totals in their ward. To this day, Trumpites continue to harass and threaten Freeman and Moss.
Notions that federal indictments should take a long time to go to trial don’t apply when the people and the defendant both need a speedy trial. If Trump were really innocent, as he claims, a speedy trial would vindicate him before the 2024 election. More important, the voters will know before the election whether one of the candidates has committed the worst crimes in U.S. election history. A trial could easily be held by November and wrap up before March, for example, when primary results might already confirm Trump as the GOP candidate.
There are no complicated documents involved in this case, and the indictment is brief and concise, taking away the excuse Trump lawyers have that they need more time, enough time essentially to drag on after the election when they hope to make the entire thing go away.
The chances of a speedy trial are decent because the judge handling this case in the D.C. Circuit Court is Judge Tanya Chutkan. Chutkan is known for handing out stiff sentences to January 6 insurrectionists, sometimes stiffer than those recommended by prosecutors. There is no concern here that, unlike the judge handling the documents case in Florida, this is a judge in Trump’s pocket.
Well-crafted indictment
In what is seen as a smart legal move, Smith did not charge Trump for the violence itself that day but rather for using that violence to stage his coup attempt. In fact, some of the only words he didn’t use in his 45–page indictment: “Seditious conspiracy,” “treason,” and “insurrection.”
If you get into Trump’s notorious speech at the ellipse, you can get mired in free speech issues, namely that Trump was using his free speech rights when he urged people to fight, not encouraging or leading an actual insurrection itself. This takes away the free speech defense from Trump without ignoring how violence was used by him in many of the steps he took to carry out his coup.
“Seditious conspiracy” tops, however, the convictions of hundreds of the Trumpite invaders of the U.S. Capitol that winter day. “Treason” has been uttered by at least one constitutional scholar. But Smith’s “unprecedented assault” description came close to that, too.
Smith’s indictment was just the latest legal blow against Trump, and it won’t be the last. More charges, and a second Trump aide named as a defendant, were recently added to the case pending against the former president in Florida over stolen government papers at his Mar-a-Lago estate, and in New Jersey, too.
And Fani Willis, the Fulton County (Atlanta), Ga., District Attorney, promises an indictment there for Trump’s try at stealing Georgia’s electoral votes by adding phantom popular votes to Georgia’s count.
Trump will be formally arraigned in Washington on this indictment on August 3.
Smith’s indictments list six unnamed “co-conspirators” whose law-breaking is greatly detailed. They are not part of this indictment, however, because some of them will be called to testify against Trump, and because indicting all of them at once might have unacceptably delayed the trial. The Number 2 co-conspirator, lawyer John Eastman, had outlined as early as the year 2000 the idea that the Electoral College need not reflect the will of the voters in the states. The Number 4 co-conspirator, Jeffrey Clark, was the one Trump wanted to install as Attorney General at the last minute to do his bidding. Clark favored seizing voting machines and declaring martial law to suppress any opposition from the U.S. public.
Under sentencing rules, Trump could end up with 40 years in jail. Smith notes that the investigation is continuing, however, and that means more action, including indictments, can come.
Outside the purview of these indictments is the issue of who paid for the attack on the Capitol. Independent investigations by good-government groups and People’s World showed the answer to that question is the Trump slice of the Republican corporate class. The insurrection alone cost at least $4.3 million. And that doesn’t count Trump’s campaign spending for a “war room” in the Willard Hotel to house his co-conspirators in his electoral vote theft.
And as one good-government group put it, the true total may never be known because of the numerous “shell” committees Trump and the Republicans established to gather and funnel corporate “dark money”—secret cash—to the conspirators and invaders.
Trump knew he’d lost
The indictment shows Trump knew he was lying about the election and knew he had lost the electoral vote to Democratic presidential nominee Joe Biden, as well as the popular vote. His advisers told him so, over and over again.
Trump even admitted it, but just once: To Gen. Mark Milley, chair of the Joint Chiefs of Staff, the indictment says. When they discussed an overseas military problem in late December 2020, Trump told Milley, “Yeah, you’re right. It’s too late for us. Let’s give that to the next guy.” Biden, though Trump didn’t name him, was “the next guy.”
Yet Trump persisted and upped his campaign to overturn the election result.
“Despite having lost, the defendant,” Trump, “was determined to remain in power,” the indictment declares. “So for more than two months following Election Day…the defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won.
“These claims were false, and [Trump] knew that they were false. He knowingly spread them anyway, to make his knowingly false claims appear legitimate, create an intense national atmosphere of distrust and anger, and erode public faith in the administration of the election.”
How did he know? Senior Justice Department officials told him. Senior White House staffers told him. Senior campaign staffers told him. Senior state elections officials told him. Even Vice President Mike Pence told him. He ignored them all—and sent his invaders not just to trash the Capitol and stop the vote count, which was a crime, but to pursue Pence.
Trump also set in motion a conspiracy to charge vote fraud in six key swing states—Georgia, Pennsylvania, Arizona, Michigan, Wisconsin, and Nevada—plus New Mexico. Then the six were to swing their electoral votes to Trump via fake electors.
The result was the insurrection of more than a thousand Trumpites that January day. Six police officers died then or soon after from their injuries. So did one Trumpite. More than 140 police were injured. Lawmakers, workers, journalists, and observers ran for their lives as Trumpites ravaged the Capitol.
“It was driven by lies,” Smith said of the invasion and insurrection in his short press conference, where, as usual, he took no questions. “Lies by the defendant,” Trump “aimed at obstructing a bedrock process of the U.S. government—collecting, counting, and certifying the results of a presidential election.”
But Trump’s lies succeeded in ordering and encouraging the insurrection, the indictment says. That’s even though the indictment spends little space—six pages—on the insurrection.
“Stop the steal,” Trump bleated between the election and the invasion, the indictment notes. “Stop the steal!” he still bleats as he seeks the White House anew in next year’s election. And an overwhelming majority of Republicans—both rank-and-file and elected officials—still believe him, despite the evidence and now the indictment.
Polls give Trump a widening margin over the rest of the Republican field, but that could change radically as time goes on. And except for Pence, former Govs. Chris Christie of New Jersey and Asa Hutchinson of Arkansas, and ex-Rep. Will Hurd of Texas, most leading Republicans have remained mostly silent, if not supportive of the ex-president. The favorable primary polls of Republicans are one thing, however, and the general election is something entirely different.
On the campaign trail, Trump offered government “reorganization” plans. One of his top planks is to bring the Justice Department back under direct White House control, with the Attorney General and other top officials kowtowing to presidential dictates.
Attorney General Merrick Garland declared Tuesday night that the investigation resulting in the indictments was the biggest investigation in the history of the Justice Department. In his brief statement, he said Special Counsel Smith closely followed the law and that further information would be available from the court filings.
Joyce Vance, a former U.S. Attorney, said Tuesday that the fourth count of the indictment, the attack on the right to vote, was, in her mind the most important. “It tells to the American people that this man was not acting in your interest when he was president and cannot be expected to do so if he regains the Oval Office.”
The message to the anti-MAGA majority in the country is clear: Prevent Trump from ever getting near the White House again and dump each and every one of his enabling Republican lawmakers who hold or who are seeking public office.
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