Parsing the Trump Indictment

 

The headlines are consumed with the multiple lawsuits against Donald Trump for the misdeeds that he allegedly—I use the term cautiously—committed both in and out of office. By far the most serious of these cases is the indictment brought by special prosecutor Jack Smith against Trump for his efforts to overturn the results of the 2020 presidential election.

The attacks against these cases move along two parallel tracks. The political track is that Trump is the victim of a political ambush that began with the Steele dossier and continued with the Mueller investigation, followed by two dubious impeachments. In other words, they are efforts to discredit him in the eyes of the voters. Yet at the same time, goes the argument, Hillary Clinton and Joe Biden (with son Hunter in tow) receive kid-gloves treatment for crimes of equal or greater magnitude. Trump’s ability to maintain his standing in the polls stems from the conviction of his supporters that the motives of his accusers matter far more than the guilt or innocence of his actions. So the worse the case looks, the more hysterical Trump’s denunciations of Smith, the stronger his support.

But there is also the legal side to contend with, and here Trump also has defenders of the legality (or at least non-criminality) of his actions. Alan Dershowitz, one of his unhappy defenders, refers to Trump’s “inexcusable, but in [his] view constitutionally protected, role in the terrible events of January 6.” I agree with Dershowitz on the first part of the charge but disagree with him on the second. Even by the high standard associated with prosecutions, the core of this case falls, to use the now common phrase invoked by David Rivkin and Lee Casey, outside “the outer perimeter of his official responsibility.” And the actions here are so far beyond that line that none of the possible defenses seems credible as a matter of law.

Start with the issues of freedom of speech invoked not only by Dershowitz but also by conservative commentators like Kimberley Strassel, who fear that if Trump is convicted of “fraud,” we could not build enough prisons to hold all the successful politicians who are masters of that dubious art. These arguments may protect Trump’s rants, but they do not work against the unique particulars of this case. The First Amendment does not protect against duress, fraud, and undue influence in cases where these are likely to exert their maximum effect. The Smith indictment is a canny piece of work precisely because it does not overclaim—for the most part. To be sure, its initial account, which speaks of “theft of honest services,” is not likely to go anywhere, given that the decisive precedent, Skilling v. United States (2010), limited that crime to cases where individuals under various fiduciary duties engage in bribery or kickback schemes. Smith touched lightly on Trump’s public speeches before large crowds, precisely because the First Amendment applies to them—whether true or false, or innocently or fraudulently made. In these cases, counterspeech provides all the protection needed to ensure open and robust political debate.

Instead, the strength of the Smith indictment lies in its detailed narrative of the strenuous efforts to derail the outcome of the election. It is important to remember that the duties of the vice president were set out in detail in the Twelfth Amendment to the Constitution. The first direction regards the votes counted separately in all the states, “which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate [Pence] shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” There is only one way to read these provisions. The Electoral College is not a unitary body. Each state has its own count, and when those counts were done (in the days before electors were “bound”), it was of utmost importance that the vote not be tampered with, which is why the transmission was under seal, and why the votes had to be opened and counted before both houses of Congress to ensure the integrity of the count. Ironically, it was just this carefully guarded chain of custody that was lacking in so many states in the 2020 election.

The last thing that this constitutional scheme could contemplate was letting the vice president decide which of these ballots should be counted and why. Indeed, the passive voice suggests that once opened, the actual count should be done by some ministerial figure. I do not regard this as a hard case, and it is hard to imagine any account of free speech that allows for vast public debate yet also permits fierce private pressure to be put on the vice president to upend the explicit constitutional scheme in an area in which counterspeech plays no role whatsoever.

This sequence differs sharply from Article II, Section Three, which states plainly that the president “shall receive Ambassadors and other public Ministers.” Here, the question is whether this clause gives the president any discretion to decide who is an ambassador or a public minister. The answer to that question has to be yes, for otherwise there is a hopeless constitutional impasse when rival ambassadors present their credentials. Just this issue presented itself when President Truman chose to recognize Israel as a state in the wake of the 1947 UN partition resolution. In cases like this, discretion is needed. Not so in the description of the vice president’s counting duties under the Twelfth Amendment.

Special counsel Smith will be forced to beef up his case with detailed testimony and exhibits, and we can expect a nasty, prolonged trial. By that same token, there is no easy out for the former president.

It is sometimes said that what really matters in this case is whether Trump believed that he was right, at which point he is just another mindless politician. But good faith never means that the party who alleges it can always prevail by a mere say-so. Otherwise, in a thousand different contexts dealing with the good faith of trustees, no one could be convicted criminally, or found liable civilly, over their earnest denials of unawareness of impropriety. At some point, the unreasonableness of the claim will factor into the equation. When hundreds of public commentators of all stripes protest your actions, holding fast even when many of your closest confidants raise the same points is not going to cut it. By that standard, no one would be convicted no matter how grievous the departures from established norms.

The First Amendment is best read as making sure that common-law substantive and procedural norms are not encroached by the state. It does not create exceptionalism for speech that lies within the confines of the criminal law.

The same can be said about any effort to rely on the opinion of counsel, another potential Trump defense. At the very least, the opinion question has to be embedded in a formal letter that states a particular transaction and offers reasons for its legality. The counsel should be independent, and no set of ad hoc remarks can carry the day, especially in cases like this one, where it is possible to vet the letter long before the fatal confrontation. As with subjective good faith, the opinion letter is at most evidence on the side of legality. It may help avoid punitive damages in civil cases, but in this context, it is a far cry from a defense against criminal liability, even if it is found to be admissible.

So last, we come to the boldest claim of all: that Trump has an absolute presidential immunity under Nixon v. Fitzgerald (1982), whose fact pattern is miles away from the present case. President Nixon fired A. Ernest Fitzgerald, a former Air Force civilian employee, after Fitzgerald revealed Pentagon cost overruns. The notion that the president “is entitled to absolute immunity from damages liability predicated on his official acts” rests on a considered judgment that thousands of low-level cases could clog courts and make it impossible for the president to do his routine work. But this case is a one-off. Trying to salvage a lost election is not one of the president’s official duties. It is a personal campaign that need not be protected to assure the effective operation of the president’s office. The means chosen (an alternative set of electors) is not a means to achieve any public end. These are, by any fair reckoning, the unprotected actions of a private individual. Indeed, I know of no absolute immunity case that looks remotely like this one.

Of course, there are constitutional grey areas, but not in the core of this case about the maneuvers of January 6, 2021. In the end, I see no blockbuster legal argument that prevents this case from going forward, let the chips fall where they may. It will be a long year.

© 2023 by the Board of Trustees of Leland Stanford Junior University.

Published in Law, Politics
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  1. cdor Member
    cdor
    @cdor

    Any case can go forward. That doesn’t mean it will prevail. The bottom line, on January 20, 2021, former President Donald J Trump was packed up and gone from the White House. That is when he was required to leave. He made no attempt at an insurrection. Every American has a right to their own beliefs and to speak those beliefs out loud. It’s called the 1st Amendment.

    • #1
  2. CarolJoy, Not So Easy To Kill Coolidge
    CarolJoy, Not So Easy To Kill
    @CarolJoy

    I think the winning tactic that would resolve the case quickly in favor of Pres Trump would be an opening statement by his defense team to simply introduce the Grand Jury or jury some huge blow ups of photos of the hundreds of thousands of people there at the Reflecting Pond who had heard and abided by Trump’s proclamations.

    These photos could be followed by the now viral release on Twitter of a snippet of trump’s concluding remarks for the crowd  to be mindful of safety should any of his followers plan to go over to the US Capital Building.

    I don’t remember the exact wording, but his remarks  included how any protests should be handled with dignity and in a peaceful manner.

    The photos would show that if Trump had simply taken the time to admonish the crowd of loyal fans to tear apart the US Capital Building, that crowd could have easily done it. The US Capital police would have been no match for even 50,000 Trump followers, let alone 200,000 of them.

    Anyway attorneys being attorneys, I doubt they would care to make quick work of demolishing the Plaintiffs case. Since lowlife Dershowitz is as scummy as any state bar-rejected  attorney anywhere, I can’t imagine that he would advise Trump’s legal team to  avoid hurting their own dependable schedule of paydays to end the case quickly in Trump’s favor.

    • #2
  3. Unsk Member
    Unsk
    @Unsk

    Richard, this post is clearly your worst ever!

    You just flushed your Reputation down the toilet. Anyone who even tries to excuse these clearly inexcusable and blatantly unconstitutional indictments does not believe in the rule of law and really deep down is cheering the imposition of a Totalitarian Police State which these lawsuits are clearly trying to bring about.

    What exactly was Trump’s crime ? Your post rambles on but uncharacteristically does not get to the meat of the matter.

    Oh my Gawd! That’s Right! Trump questioned the legality of a clearly fraudulent election! That has got to be a serious crime in our new Police State! surely a hanging offense!

    • #3
  4. db25db Coolidge
    db25db
    @db25db

    Unsk (View Comment):

    Richard, this post is clearly your worst ever!

    You just flushed your Reputation down the toilet. Anyone who even tries to excuse these clearly inexcusable and blatantly unconstitutional indictments does not believe in the rule of law and really deep down is cheering the imposition of a Totalitarian Police State which these lawsuits are clearly trying to bring about.

    What exactly was Trump’s crime ? Your post rambles on but uncharacteristically does not get to the meat of the matter.

    Oh my Gawd! That’s Right! Trump questioned the legality of a clearly fraudulent election! That has got to be a serious crime in our new Police State! surely a hanging offense!

    What’s damning to Trump is not questioning the legitimacy of the election.  The direct pressure on Mike Pence to reject the outcome and ‘send it back to the states’ is what gets him in trouble.

    Its also not hard to see why Trump is perpetually in a heads I win, tails you lose position with his supporters.  They are not wrong that Democrats have been denying election results for years and get away with absolutely everything (Biden corruption).  

    • #4
  5. db25db Coolidge
    db25db
    @db25db

    CarolJoy, Not So Easy To Kill (View Comment):

    I think the winning tactic that would resolve the case quickly in favor of Pres Trump would be an opening statement by his defense team to simply introduce the Grand Jury or jury some huge blow ups of the hundreds of thousands of people there at the Reflecting Pond who had heard and abided by Trump’s proclamations.

    These photos could be followed by the now viral release on Twitter of a snippet of trump’s concluding remarks for the crowd to be mindful of safety should any of his followers plan to go over to the US Capital Building.

    I don’t remember the exact wording, but his remarks included how any protests should be handled with dignity and in a peaceful manner.

    The photos would show that if Trump had simply taken the time to admonish the crowd of loyal fans to tear apart the US Capital Building, that crowd could have easily done it. The US Capital police would have been no match for even 50,000 Trump followers, let alone 200,000 of them.

    Anyway attorneys being attorneys, I doubt they would care to make quick work of demolishing the Plaintiffs case. Since lowlife Dershowitz is as scummy as any state bar-rejected attorney anywhere, I can’t imagine that he would advise Trump’s legal team to avoid hurting their own dependable schedule of paydays to end the case quickly in Trump’s favor.

    its in Washington DC.  the likelihood of Trump being acquitted is close to zero, regardless of the arguments made.  he’s got about as good a shot as a black man in Mobile in 1950 of being acquitted.

    • #5
  6. W Bob Member
    W Bob
    @WBob

    His actions might have been outside the perimeter of his duties. He even may not have believed what he was saying. All of that misses the point: How can an open, public political act be a crime when there is no way it could deceive anyone?

    What if Pence had done what Trump wanted? Either because Trump asked him or of his own accord. Could Pence have been prosecuted for it? No. And there’s no legal scholar anywhere who would say otherwise. Political statements and actions on the floor of Congress are not prosecutable. So… Pence couldn’t be prosecuted for it, but Trump could be for asking him to do it!

    What if Trump had held an alternate inauguration on 1/20/21 at Mar-a-Lago? And then informed Congress that he was the president. Could he have been prosecuted for that? Under what law? Who would have been deceived or defrauded by what he had done? So how can convening an alternate group of electors be a crime? Who would be deceived or defrauded by it?

    The desperation of these ridiculous people screams out from the transparent stupidity of their charges against Trump.

    • #6
  7. kedavis Coolidge
    kedavis
    @kedavis

    W Bob (View Comment):

    His actions might have been outside the perimeter of his duties. He even may not have believed what he was saying. All of that misses the point: How can an open, public political act be a crime when there is no way it could deceive anyone?

    What if Pence had done what Trump wanted? Either because Trump asked him or of his own accord. Could Pence have been prosecuted for it? No. And there’s no legal scholar anywhere who would say otherwise. Political statements and actions on the floor of Congress are not prosecutable. So… Pence couldn’t be prosecuted for it, but Trump could be for asking him to do it!

    What if Trump had held an alternate inauguration on 1/20/21 at Mar-a-Lago? And then informed Congress that he was the president. Could he have been prosecuted for that? Under what law? Who would have been deceived or defrauded by what he had done? So how can convening an alternate group of electors be a crime? Who would be deceived or defrauded by it?

    The desperation of these ridiculous people screams out from the transparent stupidity of their charges against Trump.

    The problem may be that there don’t seem to be many lawyers even supposedly among those now working for Trump who seem able to see and understand these issues, they might also be unwilling to present them in court even if they know about them because of what might happen to THEM as a result.

    The Cardassians take successful defense seriously too.

     

    • #7
  8. Old Bathos Member
    Old Bathos
    @OldBathos

    What if the request made to Pence was to perform an act of civil disobedience and refuse to act to certify because of serious doubts about the validity of the election. 

    Prof. Epstein explains that Pence’s role was merely as a “ministerial figure” which means that nothing Pence did could alter the status of the reported electoral votes which means that the request to Pence cannot be construed as an attempt to overturn the election but a request for symbolic support of Trump’s belief that the election was invalid.  

    Presumably, Pence could be impeached on his last day in office but it would not have been a crime so the notion that this was an attempt to create a conspiracy to undo the election is a stretch.  Dershowitz is right.

     

    • #8
  9. CarolJoy, Not So Easy To Kill Coolidge
    CarolJoy, Not So Easy To Kill
    @CarolJoy

    W Bob (View Comment):

    His actions might have been outside the perimeter of his duties. He even may not have believed what he was saying. All of that misses the point: How can an open, public political act be a crime when there is no way it could deceive anyone?

    What if Pence had done what Trump wanted? Either because Trump asked him or of his own accord. Could Pence have been prosecuted for it? No. And there’s no legal scholar anywhere who would say otherwise. Political statements and actions on the floor of Congress are not prosecutable. So… Pence couldn’t be prosecuted for it, but Trump could be for asking him to do it!

    What if Trump had held an alternate inauguration on 1/20/21 at Mar-a-Lago? And then informed Congress that he was the president. Could he have been prosecuted for that? Under what law? Who would have been deceived or defrauded by what he had done? So how can convening an alternate group of electors be a crime? Who would be deceived or defrauded by it?

    The desperation of these ridiculous people screams out from the transparent stupidity of their charges against Trump.

    I like the logic of your approach. You cut to the main issue while others of us are so incensed at the weaponisation of the court system against not only Trump but the J6 prisoners that we have left logic short changed.

     

    • #9
  10. CarolJoy, Not So Easy To Kill Coolidge
    CarolJoy, Not So Easy To Kill
    @CarolJoy

    W Bob (View Comment):

    His actions might have been outside the perimeter of his duties. He even may not have believed what he was saying. All of that misses the point: How can an open, public political act be a crime when there is no way it could deceive anyone?

    SNIP

    What if Trump had held an alternate inauguration on 1/20/21 at Mar-a-Lago? And then informed Congress that he was the president. Could he have been prosecuted for that? Under what law? Who would have been deceived or defrauded by what he had done? So how can convening an alternate group of electors be a crime? Who would be deceived or defrauded by it?

    The desperation of these ridiculous people screams out from the transparent stupidity of their charges against Trump.

    I think as long as he did not insist on having his inauguration at Fort Sumpter, he’d be okay.

    The media would see Fort Sumpter as a dog whistle to his White Supremacist contingent, all 71 million of us, to take up arms against the Union.

    • #10
  11. W Bob Member
    W Bob
    @WBob

    CarolJoy, Not So Easy To Kill (View Comment):

    W Bob (View Comment):

    His actions might have been outside the perimeter of his duties. He even may not have believed what he was saying. All of that misses the point: How can an open, public political act be a crime when there is no way it could deceive anyone?

    SNIP

    What if Trump had held an alternate inauguration on 1/20/21 at Mar-a-Lago? And then informed Congress that he was the president. Could he have been prosecuted for that? Under what law? Who would have been deceived or defrauded by what he had done? So how can convening an alternate group of electors be a crime? Who would be deceived or defrauded by it?

    The desperation of these ridiculous people screams out from the transparent stupidity of their charges against Trump.

    I think as long as he did not insist on having his inauguration at Fort Sumpter, he’d be okay.

    The media would see Fort Sumpter as a dog whistle to his White Supremacist contingent, all 71 million of us, to take up arms against the Union.

    Look at this attempt to coerce the VP to overturn an election. I count three Democrats who should go to jail with Trump.

    https://www.cnn.com/videos/politics/2020/12/08/al-gore-2000-election-certification-mh-orig.cnn

     

     

    • #11
  12. Old Bathos Member
    Old Bathos
    @OldBathos

    Pence’s role is the same as the onstage presenter at the Academy Awards–open the envelope and announce the winner.  If the presenter refuses to open it or read the name or gives another name it does not change who actually won the Oscar.  It would be merely a symbolic protest over unresolved irregularities, a possible delay.  Trump was in effect asking for a gesture of solidarity, not a conspiracy to alter the outcome.

    I happen to think that Trump was wrong to do that.  The process ran. Pence did not have a smoking gun in hand to reject any particular state’s electors and that would not have been within his purview anyway.  It was a losing tactic.

    The other side organized, mobilized, fund-raised, and cheated better than our side.  Trump’s lawyers could not make the case in time. (It is an open question as to whether they could or should have).  We did not have the proof in time so the game was over.  Once the ballots get in the box, however bogus, they count.  Trump needed to accept the procedural reality and adopt a different, longer-term protest strategy such as a grassroots effort to check every voter registration in every precinct in America with a website tally board with the running total of fake registrations.

    • #12
  13. cdor Member
    cdor
    @cdor

    Old Bathos (View Comment):

    Pence’s role is the same as the onstage presenter at the Academy Awards–open the envelope and announce the winner. If the presenter refuses to open it or read the name or gives another name it does not change who actually won the Oscar. It would be merely a symbolic protest over unresolved irregularities, a possible delay. Trump was in effect asking for a gesture of solidarity, not a conspiracy to alter the outcome.

    I happen to think that Trump was wrong to do that. The process ran. Pence did not have a smoking gun in hand to reject any particular state’s electors and that would not have been within his purview anyway. It was a losing tactic.

    The other side organized, mobilized, fund-raised, and cheated better than our side. Trump’s lawyers could not make the case in time. (It is an open question as to whether they could or should have). We did not have the proof in time so the game was over. Once the ballots get in the box, however bogus, they count. Trump needed to accept the procedural reality and adopt a different, longer-term protest strategy such as a grassroots effort to check every voter registration in every precinct in America with a website tally board with the running total of fake registrations.

    I see this the same as you, Old Bathos. Trump has spent the last three years complaining about the cheating in 2020 rather than doing what he could to make sure it doesn’t happen again in 2024. I just read that after his fourth indictment, the one in Georgia, Trump is going to hold a news conference to describe the cheating in the 2020 election. I am beginning to think they have won. How will Trump have any time to run for President when every second and most of the dollars will be used in defending against these indictments? He doesn’t even have an ally in Congress… certainly not the Senate. His only hope, it seems, is for the Supreme Court to step in. But on what basis?

    • #13
  14. CarolJoy, Not So Easy To Kill Coolidge
    CarolJoy, Not So Easy To Kill
    @CarolJoy

    W Bob (View Comment):

    CarolJoy, Not So Easy To Kill (View Comment):

    W Bob (View Comment):

    His actions might have been outside the perimeter of his duties. He even may not have believed what he was saying. All of that misses the point: How can an open, public political act be a crime when there is no way it could deceive anyone?

    SNIP

    What if Trump had held an alternate inauguration on 1/20/21 at Mar-a-Lago? And then informed Congress that he was the president. Could he have been prosecuted for that? Under what law? Who would have been deceived or defrauded by what he had done? So how can convening an alternate group of electors be a crime? Who would be deceived or defrauded by it?

    The desperation of these ridiculous people screams out from the transparent stupidity of their charges against Trump.

    I think as long as he did not insist on having his inauguration at Fort Sumpter, he’d be okay.

    The media would see Fort Sumpter as a dog whistle to his White Supremacist contingent, all 71 million of us, to take up arms against the Union.

    Look at this attempt to coerce the VP to overturn an election. I count three Democrats who should go to jail with Trump.

    https://www.cnn.com/videos/politics/2020/12/08/al-gore-2000-election-certification-mh-orig.cnn

     

     

    Had John Kerry sided with election activists after the 2004 election, he then would have been insistent that VP Cheney should take steps to examine suspicious vote counts. (Especially in Ohio.)

    Of course, given that Cheney was a staunch neo con, it would not have done a bit of good for Kerry to attempt this activity.

    But even had he gone this route, I think all that would have happened would have been for Cheney to refuse, and then the  media would have then lampooned Kerry.

    • #14
  15. kedavis Coolidge
    kedavis
    @kedavis

    W Bob (View Comment):

    CarolJoy, Not So Easy To Kill (View Comment):

    W Bob (View Comment):

    His actions might have been outside the perimeter of his duties. He even may not have believed what he was saying. All of that misses the point: How can an open, public political act be a crime when there is no way it could deceive anyone?

    SNIP

    What if Trump had held an alternate inauguration on 1/20/21 at Mar-a-Lago? And then informed Congress that he was the president. Could he have been prosecuted for that? Under what law? Who would have been deceived or defrauded by what he had done? So how can convening an alternate group of electors be a crime? Who would be deceived or defrauded by it?

    The desperation of these ridiculous people screams out from the transparent stupidity of their charges against Trump.

    I think as long as he did not insist on having his inauguration at Fort Sumpter, he’d be okay.

    The media would see Fort Sumpter as a dog whistle to his White Supremacist contingent, all 71 million of us, to take up arms against the Union.

    Look at this attempt to coerce the VP to overturn an election. I count three Democrats who should go to jail with Trump.

    https://www.cnn.com/videos/politics/2020/12/08/al-gore-2000-election-certification-mh-orig.cnn

     

    Actually, I would insist they go FIRST.  Because otherwise it never happens.

    • #15
  16. W Bob Member
    W Bob
    @WBob

    Old Bathos (View Comment):

    Pence’s role is the same as the onstage presenter at the Academy Awards–open the envelope and announce the winner. If the presenter refuses to open it or read the name or gives another name it does not change who actually won the Oscar. It would be merely a symbolic protest over unresolved irregularities, a possible delay. Trump was in effect asking for a gesture of solidarity, not a conspiracy to alter the outcome.

     

    When the Supreme Court or some appellate court sides with Trump, that will be their rationale. 

    I was very disappointed in Bill Barr recently when he was on CNN and he was given the opportunity to point out how messed up these charges are, but instead he just sort of nodded approvingly. It seemed like this was the kind of thing he always defended Trump against.

    • #16
  17. kedavis Coolidge
    kedavis
    @kedavis

    W Bob (View Comment):

    Old Bathos (View Comment):

    Pence’s role is the same as the onstage presenter at the Academy Awards–open the envelope and announce the winner. If the presenter refuses to open it or read the name or gives another name it does not change who actually won the Oscar. It would be merely a symbolic protest over unresolved irregularities, a possible delay. Trump was in effect asking for a gesture of solidarity, not a conspiracy to alter the outcome.

     

    When the Supreme Court or some appellate court sides with Trump, that will be their rationale.

    I was very disappointed in Bill Barr recently when he was on CNN and he was given the opportunity to point out how messed up these charges are, but instead he just sort of nodded approvingly. It seemed like this was the kind of thing he always defended Trump against.

    But now he’s “grown,” don’cha’know.

    • #17
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