By Stephen Macaulay
It couldn’t be much simpler. Even understandable by those members of Congress who seem to have a difficulty understanding words with more than one syllable:
“The Defendant, DONALD J. TRUMP, was the forty-fifth President of the United States and a candidate for re-election in 2020. The Defendant lost the 2020 presidential election.”
So opens United States of America v. Donald J. Trump, which goes on to enumerate four counts against the defendant:
- Conspiracy to Defraud the United States
- Conspiracy to Obstruct an Official Proceeding
- Obstruction of and Attempt to Obstruct an Official Proceeding
- Conspiracy Against Rights
The document, signed by Jack Smith, Special Counsel, United States Department of Justice, goes on to detail, chapter and timeline, the rationale behind why a grand jury decided that this indictment is the real deal.
On NBC’s Meet The Press August 6, one of the defendant’s attorneys, John Lauro, opened, “The defense is quite simple. Donald Trump, President Trump, believed in his heart of hearts that he had won that election. And as any American citizen he had a right to speak out under the First Amendment.”
The first point is irrelevant. The second point is on the face of it true, but then not necessarily so. In a speech last October to The Heritage Foundation, Justice Samuel Alito pointed out, “We depend on freedom of speech. Freedom of speech is essential.” Then went on to note that the First Amendment doesn’t protect things like “extortion and threats” and “defamation.”
Yes, there’s that.
But what about believing “in his heart of hearts that he had won that election”?
Well, according to the “Manual of Model Criminal Jury Instructions” prepared by the 9th Circuit, there’s this instruction that can go to jurors:
“4.9 Deliberate Ignorance. You may find that the defendant acted knowingly if you find beyond a reasonable doubt that: First, the defendant was aware of a high probability that [e.g., drugs were in the defendant’s automobile], and Second, the defendant deliberately avoided learning the truth.”
He could hold his breath until he turned blue and that wouldn’t make the second sentence in the opening of that indictment — "The Defendant lost the 2020 presidential election” — go away. His then-attorney general told him as much, as did plenty of others. His team and supporters brought suits about “fake electors” that would have led to the election being “stolen” and came up empty handed.
There are some who decry the so-called “weaponization of the Justice Department” against him.
Isn’t the department supposed to charge people who may have committed crimes? Isn’t that its job? Wouldn’t it be utter negligence were the people in the department to find what appears to be an overwhelming amount of evidence and simply ignore it or wait until it is convenient for the person they need to charge before they do something about it?
And while on the subject of “weaponization,” there’s this in the indictment:
“The Defendant and co-conspirators attempted to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome; that sought to advance the Defendant's fraudulent elector plan by using the Justice Department's authority to falsely present the fraudulent electors as a valid alternative to the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states' legislatures to convene to create the opportunity to choose the fraudulent electors over the legitimate electors.”
Hmm. . .seems like someone was acutely interested in actually using the Justice Department as a tool.
But let’s get back to Lauro, as there were plenty of claims he made that are, to put it mildly, interesting:
“But what he's being indicted for, ultimately, is following legal advice from an esteemed scholar, John Eastman.”
Eastman is presently on trial in California in a case which could result in him being disbarred.
“Both Vice President Pence and President Trump saw that they had 10 million votes more than they had in 2016,” He told Meet the Press. “No president has ever lost under those circumstances.”
Well, every person who has run for office has lost because the other person got more votes, regardless of the number of additional votes than they had previously attained.
“In order to have a violation of law you have to have criminal intent. And in this case, corrupt intent. And what that means is that you have to have some desire to do something unlawful. If your – if your attorney is telling you that you have a right to petition Congress, then that completely eliminates any criminal intent.”
No one is disputing the right to petition Congress. It is the other stuff. And that is the unlawful part. And it goes well beyond “desire” to do something unlawful.
“A – a technical violation of the Constitution is not a violation of criminal law.”
According to a speech by Harold Furchtgott-Roth published by the American Enterprise Institute — an outfit as friendly to the defendant as The Heritage Foundation — "Who can violate the Constitution? Only a governmental entity can, or indirectly, an individual exercising responsibility for that governmental entity. Each of us, as private citizens, cannot violate the Constitution. It is beyond our power. But the government can violate the Constitution in a manner to harm each of us as individuals, by violating the First Amendment or much of the Bill of Rights, or the 14th Amendment, or a few of the other amendments to the Constitution.
“We don't have to prove fraud. People don't understand that. All we have to do is prove that President Trump was acting with his conviction that this election was conducted improperly.”
He “was acting with his conviction.” Again, the Tinkerbell defense. If you really, really believe something. . . .
Macaulay is pundit-at-large for The Hustings.