Conviction is well within the realm of plausibility, and this case will reverberate in American politics for decades.
As you probably have noticed, there is a lively debate around the NR watercooler over the most recent federal indictment of Donald Trump, this time related to his conduct leading up to and during the January 6, 2021, riot at the U.S. Capitol. In his three recent legal entanglements to this point, many of us have argued along these lines: (1) The Alvin Bragg/Stormy Daniels payoff case is explicitly politicized and legally dubious nonsense; (2) the E. Jean Carroll sexual harassment civil suit dating back to the 1990s is an object lesson in “that’s what you get when you refuse to settle or show up for trial”; (3) the classified-documents charges are truly grave, in a way that is insufficiently appreciated by most laymen and especially by Trump’s partisans.
But now we have the proverbial Main Event. There is little of more gravity politically than the matter of whether Donald Trump, after clearly losing the 2020 election, then conspired to impede the peaceful transition of presidential power, and in so doing threatened the existence and continuity of the republic. You may regard it as an enormous, recurrent, shrieking migraine that America wishes would simply go away, but it will not go away: A former president is about to be brought to criminal trial on charges relating to his purported attempt to overthrow the government; these charges carry a jail sentence with them, and conviction is well within the realm of plausibility. (“May you live in interesting times.”)
The debate here at NR stems not from disagreement about the nature of January 6. It was an enormity. Rather, the debate begins with the question of whether such a case is more properly the province of the legislative branch to handle via impeachment — which of course it already has been — versus the criminal-justice system. But of course, that is only the first problem with these charges, because once that threshold has been passed — I am reluctantly persuaded it has been — the question then becomes: Sure, he probably did it . . . but can you prove it in a court of law? It matters more than you might think from a legal perspective. The fraud issue (put generally: “Were Donald Trump and his team ‘defrauding’ the American public by putting forth alternate slates of electors and lobbying to dismiss the proper results?”) is complicated yet boils down to a question that courts are required to consider: Was anyone really fooled here? That line perhaps reads as flippant on the page, but it is a legitimately open question that far too few realize will have to be fully litigated as a preliminary to even begin properly establishing the elements of a fraud claim.
The real issue, however, arrives with mens rea. That is the Latin legal term for “a knowingly wrongdoing state of mind,” and is one of the key elements of most criminal (as opposed to merely civil) charges. Most felonies have a mens rea component, in the sense that the defendant must have intended to take the act that is being charged as criminal. Whether or not they thought said act was criminal is usually immaterial (“ignorance of the law is no excuse” is one of our oldest legal maxims for a reason). In cases that clearly implicate the First Amendment and national politics, however, bright-line rules get much hazier because of the primacy we place constitutionally on the value of political speech. And they get even hazier still when they involve a historically well-known carny and sawdust-Caesar showman such as Donald Trump, whose stock in trade has always been being a professional blusterer.
For here is the technical problem: Donald Trump said before the election that it was going to be rigged, and afterwards never stopped claiming it was. This is not merely a matter of publicly available record, but a fact that countless journalists could testify to under oath. (Charles C. W. Cooke wrote this piece two years ago and was not wrong.) That sufficiently demonstrates that Trump is a moron, but even if your belief is that he is actually a Machiavellian evil genius who wears a naif’s mask only for his cynically mediated interactions with journalists, the manifest public idiocy of those old takes actually cuts in his favor in terms of consistency. And nothing listed in Jack Smith’s initial indictment truly seems like an admission that would get us beyond that legal threshold. What if Trump really is just so stupid and prideful that he thought he could overturn the 2020 presidential election? (Don’t laugh, it’s coming to a defense argument near you very soon.)
This suggests to me that there is more to come — things we have not seen, nor heard about except as rumor and speculation, but which have been intentionally withheld from the indictment. This point was echoed today by law professor Orin Kerr at the Volokh Conspiracy. Kerr writes:
One question this raises is, how might Smith try to prove Trump knew?
The indictment focuses mostly on what Trump was told, and the overall implausibility of him thinking he had won. But I wonder if Smith might have more direct evidence than the indictment lets on. . . .
For all we know, what is in the public record is only part of the story. For example, of the five examples above, two are hearsay. They are Cassidy Hutchinson’s reports of what Meadows and Ratcliffe told her Trump had said. But Smith probably knows more than we do. There have been reports that Mark Meadows cooperated and testified before the grand jury investigating Trump’s post-election conduct. There have also been reports that John Ratcliffe cooperated and testified before that grand jury.
We can’t be sure, but it seems likely that Jack Smith has testimony directly from Meadows and Ratcliffe of what Trump told them. And if they were talking to Trump every day about this stuff, they presumably know a lot. And there may be other witnesses who talked to Trump at the time, and who are ready to testify about it at trial. We don’t know.
We do not, and it would behoove us to hold fire until we do. Jack Smith’s indictment of Trump in the classified-documents case shows us why. In the Mar-a-Lago case, the indictment was so brutal precisely because it was a prosecutor’s dream: It proved itself. “Here are the classified documents we took in a raid. Here is Trump, quoted on tape, demonstrating not only that he retained them, but that he knows he shouldn’t have them or be talking about them. Here are some photographs too.” The indictment was — for anyone who is even glancingly familiar with the real practice of law — airtight, almost gift-wrapped.
But it was noted that his original Mar-a-Lago indictment lacked one of the “smoking gun” documents (the stolen Iranian attack plan Trump was taped revealing his possession of in an interview) as entered into evidence. This led some to posit that said document perhaps never existed and that it had all been a giant imposture for the rubes. Then, last week, Smith updated the Mar-a-Lago indictment with several (equally grave) charges plus that Iranian war plan (now properly redacted) offered into evidence. Oops.
Learn from that example. In cases like these, the prosecutor doesn’t have to immediately show all his cards, and in fact has countless reasons both strategic and ethical not to do so, not until the exact moment legally required (especially in highly politicized cases where, as we have seen, Donald Trump is perfectly content to simply lie or encourage his surrogates to). The relevant consideration here is — as Kerr points out in his piece above — witness intimidation. I don’t know if Mark Meadows has “flipped” and is willing to testify in court that Donald Trump knew he’d lost “but was just protesting for the brand value.” If something like that turns up in a later filing then brace yourselves, because this story likely ends with Donald Trump wearing an orange jumpsuit.
This, of course, returns us to the reality that Donald Trump’s best possible substantive defenses to the present charges, as he runs for the 2024 Republican presidential nomination, are going to either be “I’m actually an authentically delusional lunatic who genuinely thought I could overthrow the government,” or — in the complete alternate — “there’s no actual fraud in fact because everyone knew I was lying.” I have little doubt as to how persuasive a pitch to undecided general-election voters this will be in 2024, but ironically that has now become the least of my concerns. I am no longer looking to the next election cycle; I have now been forced to look over the horizon to the next 50–100 years of the American republic and its domestic politics.