Shouldn't matter if Trump believed his election fraud claims
There's no such thing as a good-faith attempted coup.
I think Special Counsel Jack Smith’s indictment of Donald Trump for an attempted coup was poorly crafted, both as a matter of law and politics.
It is overbroad in parts. That contributed to excessive attention and reliance on the assertion that Trump knew that his claims about an illegitimate election were false.
As a matter of law and politics, that shouldn’t matter. There’s no such thing as a good-faith attempted coup.
There were five elements to Trump’s attempted coup.
First, plant and nourish doubts about the legitimacy of the election results.
Second, get state legislators in states controlled by Republicans but which Joe Biden won narrowly to convene and declare Trump’s slate as the official electors.
Third, failing that, have the Trump slate meet and declare themselves the official electors and submit paperwork making that claim.
Fourth, have Vice President Mike Pence reject the Biden electors from states where the Trump electors submitted a fraudulent competing claim. What was to happen next wasn’t clear and Trump’s legal Rasputin, John Eastman, offered different scenarios as the coup plot progressed. But the common feature was not accepting the Biden electors in sufficient states to deny him an Electoral College majority.
Fifth, on Jan. 6, when the Electoral College vote was to be accepted by Congress, have a massive rally march on the Capitol to intimidate Congress, and particularly Pence, to execute the coup.
Now, the first step in the coup – planting and nourishing doubts about the legitimacy of the election results – was, however morally depraved, protected First Amendment activity, as the Smith indictment acknowledges. And arguably, so was the last step.
However, the third and fourth steps, which were the heart of the coup attempt, aren’t an exercise in First Amendment rights. Nor are they legitimate or legal steps to contest an election result.
Every state has legal steps and processes for contesting elections and certifying final results. The Trump campaign struck out, usually ingloriously, in its election challenges. The results were legally certified and upheld by the courts.
That was the end of the legal process for Trump to challenge the election results. He was free, under the First Amendment, to bellyache and claim a rip-off and fraud until he was dragged out of the White House kicking and screaming on January 20th. But he had no legal options left to continue to contest the results.
There is no legal option of ignoring the certified election results, convening your own slate of electors, and having them submit fraudulent paperwork claiming to be the official slate. And there is no legal option of conspiring to have the vice president and Congress reject the legally certified Electoral College votes of the states.
Some on the sane right, such as the Wall Street Journal editorialists, think this coup business is overwrought, that the institutional checks and balances worked and held. Judges, including some appointed by Trump, rejected baseless election challenges. State legislatures didn’t convene to overturn what their voters had decided. The Electoral College votes were cast according to law and accepted by Congress. Joe Biden was inaugurated.
I see it very differently, as a close-run thing. What if Pence had been willing to do what Trump wanted him to do? The country would have devolved into dangerous chaos. The damage would have been incalculable and enduring. Pence had been a steadfast Trump apologist for four years. The institutional checks and balances held, in the final analysis, because a single human being, a consistent Trump sycophant, finally defied Trump and the mob Trump had sicced on him.
Smith’s indictment asserts that Trump’s coup attempt constitutes a fraud on the federal government. But this requires investing the federal government as an institution, as opposed to the body politic as a whole, with an interest in the proper administration of the tabulation and acceptance of Electoral College votes. That seems an unnecessary stretch.
The indictment also asserts that Trump’s coup attempt violated the civil rights of voters under a law designed to defang the KKK. This also seems a stretch. No individual was deprived of the right to vote or to have his or her vote counted. Trump was attempting to thwart the cumulative consequence of the vote by staying in office. That’s an offense against the body politic as a whole, not a violation of any particular individual’s civil rights.
The indictment spends a lot of space documenting the number of times reputable people told Trump that his election fraud claims were all wet. And seems to treat Trump knowing that his claims were false as a predicate to the charges. Numerous commentators have pointed out how difficult this will be to prove beyond a reasonable doubt.
The most consequential and on-point charge, however, wouldn’t seem to require that as a predicate, making the focus on it in the indictment puzzling.
Federal law makes it a crime for “whoever corruptly …obstructs, influences, or impedes any official proceeding, or attempts to do so….”
Assuming that tabulating and accepting Electoral College votes is an official proceeding, Trump unquestionably sought to obstruct, influence, and impede it.
There apparently isn’t a settled legal definition of what acting corruptly means. But it wouldn’t seem to require proving that Trump knew that his election fraud claims were bogus. In fact, it’s hard to imagine any definition of acting corruptly that didn’t include an attempted coup. An attempted coup is per se corrupt. It shouldn’t matter if Trump believed every nutty election fraud claim he spewed. That didn’t give him warrant to try to prevent the tabulation and acceptance of legally certified Electoral College votes.
So, the legal questions should be: (1) whether the tabulation and acceptance of Electoral College votes by Congress is an “official proceeding” under the statute; and (2) whether Trump’s actions constituted a corrupt attempt to obstruct, influence, or impede it.
If Smith’s indictment had been limited to that, the legal and political situation would be far clearer, and perhaps a tad healthier.
Reach Robb at firstname.lastname@example.org.