Lone Candle

“Is it illegal to try to steal a presidential election?
Special counsel Jack Smith’s indictment of Donald Trump..holds that the answer is yes. Trump’s attempt to flip the results after the 2020 election, well before the events of January 6, Smith argues, amounted to a criminal conspiracy that violated three federal laws.

But throughout the history of this investigation, many other officials seemed to think the answer was no.

For about a year after the January 6, 2021, attack on the Capitol, the Justice Department’s attention was overwhelmingly focused on that attack itself, not on Trump’s two-month attempt to change the election results beforehand.

Many of Trump’s pre-January 6 actions that Smith cites in his indictment — such as his lobbying of swing state legislators, his organizing of “alternate” elector slates in key states, and his pressuring of Vice President Mike Pence — unfolded at least partly in plain sight or were reported by journalists at the time.

Throughout most and perhaps all of 2021, none of that seems to have been the focus of an investigation by the Justice Department, and in fact, proposals to investigate them were reportedly rejected by DOJ or FBI officials. There wasn’t a consensus then that these actions were actually criminal — many believed that though Trump’s known conduct may have been unethical and dangerous to democracy, it didn’t necessarily violate specific laws.

Now, though, Smith argues the president and his allies were engaged in a criminal conspiracy. The January 6 attack itself plays a relatively more limited role in Smith’s indictment — the main crime, he’s effectively arguing, was Trump’s whole lengthy effort to overturn Biden’s win.

The question of how and why the DOJ shifted so thoroughly on this topic is complicated, and still may not be fully understood.

But one way to understand the new indictment is that it’s an effort to draw a bright line around Trump’s actions, to make clear that nothing like this should happen again — from him, or anyone else.”

“Altogether, those statements suggest that Trump’s team appears to be currently pursuing three lines of legal defense: that his speech is protected under the First Amendment, that he didn’t order Pence to participate in an illegal scheme to stop the certification of the election results, and that he couldn’t have criminal intent if he didn’t truly understand he had lost.”

…

“Smith acknowledges in the indictment that Trump had every right under the First Amendment to protest the results of the election, as the former president and his lawyers have claimed. “They don’t want me to speak about a rigged election. They don’t want me to speak about it. I have freedom of speech, the First Amendment,” Trump said Tuesday.
But Smith argues that what Trump wasn’t allowed to do was urge others to form an illegal plan to undermine the results.

The indictment describes that plan as involving a prolonged pressure and influence campaign that targeted state politicians in Wisconsin, Pennsylvania, Michigan, Georgia, and Arizona. When no politician would help him overturn the election, the indictment says Trump went on to use “Dishonesty, Fraud, and Deceit” to assemble a slate of unlawful Electoral College electors in seven states, and that he and his allies lied to many electors to get them to go along with the plan. Then, Trump tried to use the powers of the executive branch — those given to the Justice Department and the vice president — to stay in power. Finally, the indictment places at Trump’s feet the violence of January 6 and a plan to stop the certification of the vote.

All of those actions go far beyond simply protesting the results.”

…

“The question is whether Smith has the evidence”

…

“Legal experts said that prosecutors may not need to necessarily prove that Trump knew he lost the election, only that he knew he was using possibly unlawful means to reach the end he believed was right: another four years in the White House.

“Even if he believed he had won the election and it had been stolen from him, if he then went out and formulated a plan to prevent the legitimately elected electors of various states from voting and having the results certified, that would probably satisfy the intent standard,” O’Brien said.

Bader said that Smith is likely going to argue that Trump took illegal actions that “transcend what his personal motivation is for engaging in this conduct.” But he’s also likely going to argue that Trump is lying when he says he always believed that the election was stolen from him.”