Throughout his long life of wealth and privilege, Donald Trump has dodged consequences time and again. Could this finally be the case that brings him to heel?
At the start of 2023, progressives could have been forgiven for feeling cynical. At that point, it had been over two years since the election, and despite his numerous and well-documented acts of criminality, he was facing no charges. It seemed a foregone conclusion that, yet again, he would thumb his nose at the law and get off scot-free.
However, that pessimism was premature. While it took an unacceptably long time, the machinery of the justice system is finally creaking into action.
In the last few months, Trump has been hit with a flurry of indictments. He’s now facing criminal charges in New York (for his hush-money payments to a sex worker, in violation of election law); in federal court in Florida (for stealing classified documents and refusing to return them); and possibly soon in Georgia (for his felonious attempt at strong-arming the Secretary of State to “find” more votes for him).
But this is the big one. Special Counsel Jack Smith has filed felony charges against Trump for his attempts to overturn the 2020 election, including his role in inciting the deadly January 6 insurrection.
What’s in the indictment
There’s little in this indictment we didn’t already know. Most of it recounts the evidence gathered by the Congressional January 6 Commission. But it’s both informative and terrifying to see it in one place.
In late 2020, when it was clear that he had lost, Trump started spreading lies that the election was fraudulent, despite being told by his own advisors that there was no basis for believing this. A Trump campaign advisor complained about having to defend “conspiracy shit beamed down from the mothership”.
He filed a blizzard of groundless lawsuits, all of which were thrown out, and pressured Republican legislatures in swing states to override their own voters and award him the election. This effort failed as well.
The crux of the scheme, and of Jack Smith’s criminal charges, is this: When his other strategies to steal the election floundered, Trump came up with a last-ditch plan to rig the Electoral College. He conspired with his supporters to draw up fake electoral-vote certificates, hand them to Vice President Mike Pence on the floor of Congress, and have him reject the real electoral votes and count the fake ones.
Conspiracy against rights
To be perfectly clear: This isn’t free speech; this is a crime. It’s a scheme to use forged versions of official documents to change the outcome of a legal proceeding. This is like printing counterfeit dollar bills and trying to use them in a store, or forging a dead person’s will and giving it to a lawyer to read to the heirs because you don’t like what’s in the real one.
(Fittingly, one of the charges stemming from this plan is “conspiracy against rights”, first passed into law in the Ku Klux Klan Act of 1870.)
However, Pence wouldn’t go along with the plan. He insisted that the Vice President had no power to arbitrarily pick and choose electoral votes (because of course he doesn’t—if he did, no incumbent president would ever lose reelection). Trump berated him for being “too honest”, but Pence didn’t give in.
I despise Pence for being a soulless theocrat whose heart pumps sour milk instead of blood, but I have to grudgingly give him credit for this. He refused to go along with Trump’s lawbreaking, and he held firm on that stance despite enormous pressure.
However, not everyone in Trump’s circle was so principled. The most hair-raising line of the indictment is a transcript of a conversation between White House deputy counsel Patrick Philbin and a person identified as “Co-conspirator #4″—widely believed to be Jeffrey Clark, a Trump crony in the Justice Department.
Philbin argued that if Trump succeeded with his scheme, there would be riots in every major American city. Clark/Co-conspirator 4 said:
“…that’s why there’s an Insurrection Act.”
Sit with these words for a minute.
We know—even if it’s come to seem less shocking through sheer repetition—that the president of the United States schemed to steal an election, in plain sight, and remain in office against the will of the voters. We now know, in addition, that the conspirators expected mass protest from the American people, and that they were at least considering calling out the military to put the protests down by force.
A second Civil War
As I said at the time, it’s no exaggeration to say that a competent fascist could have overthrown the United States government in 2020. We came right up to the edge of killing democracy and turning the country over to a military junta.
It’s possible the military would have refused to follow these orders if Trump had given them—but at minimum, we’d have been plunged into a massive constitutional crisis. And what would have happened if some branches of the military had gone along with the scheme while others refused? Blue states claiming Trump wasn’t president while red states claimed he was? It could have ignited a second Civil War.
Either way, we escaped by the skin of our teeth. We know the next and final act of the drama: when everything else failed, Trump gathered a mob of his followers in Washington, D.C., riled them up with more lies about a stolen election, and incited them to assault the Capitol. The mob overwhelmed the Capitol police, broke into the building while Congress fled in a panic, and ransacked the halls of government until law enforcement regrouped and chased them out. They failed to disrupt the election, but if they had captured Pence or any member of Congress, we know what they intended. They built a gallows.
A norm not to be broken lightly
There’s good reason not to prosecute former presidents. It’s not a norm to be broken lightly. Otherwise, we risk becoming a banana republic where every new president persecutes and jails his opposition. It’s not hyperbole to say that this norm has helped America have smooth handovers of power for the last two centuries, something other nations have struggled with.
But there have to be limits to what we’re willing to tolerate. Otherwise, a president could commit crimes with impunity. There may still be reason to overlook minor offenses, but extraordinary crimes demand an extraordinary response.
We approached this precipice once before, with a different Republican president. However, with Nixon, it mattered that the entire political apparatus was united against him. He resigned because Congressional Republicans made it clear to him that they’d support impeachment. Without the party behind him, he had no prospect of political survival. Rightly or wrongly, Ford’s decision to pardon him was likely motivated by the belief that there was no further harm he could do.
The situation we’re facing is very different. With a handful of principled exceptions—many of whom have already lost their seats in primaries—the Republican Party has fallen into line behind Trump. They’re still excusing his flagrant lawbreaking and his attempted coup. Even his political rivals, who’d benefit most if he were removed from the board, continue to attack and denounce Democrats for prosecuting him. Whatever the outcomes of the criminal trials, he’s all but certain to be the 2024 nominee.
Can our democracy survive when one of its two major parties has embraced insurrection and authoritarianism? Perhaps, but only if it’s apparent to everyone that there will be consequences. The United States has to deliver a strong message that attacks on the fabric of our society will be punished. Otherwise, he and others like him will just be emboldened to try again.
There’s no question about whether Trump committed the acts he’s charged with. Of course, the real hurdle is finding a jury willing to convict him. But that’s no reason not to try. On the contrary, justice demands we make the attempt. To give up before we start would be to concede that the rich and politically influential are above the law, whereas if we try him, there’s at least a chance. And if the prosecutors succeed, they may just save American democracy in the bargain.