Is it illegal to try to steal a presidential election?

“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.”

Trump’s defense in the 2020 election case, explained by legal experts

“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.”

Trump’s 4 indictments, ranked by the stakes

“this case “will legally define what a politician is able to do to reverse a defeat.” The outcome of this case could have major implications for the 2024 election and every race that follows: If Trump isn’t held accountable for the actions he took on January 6 and leading up to it, he and others could try to pull the same schemes in the future.
Ultimately, this case has a significant bearing on the future of US democracy.

Number of charges: Four felony counts. They include:

Charge of conspiracy to defraud the United States, which includes plotting to overturn the results of the 2020 election
Conspiracy to obstruct an official proceeding, including plotting to prevent the 2020 election certification
Obstruction of and attempt to obstruct an official proceeding, which includes actually blocking the certification of the 2020 election results
Conspiracy against rights, which includes a plan to deprive someone of a constitutional right (in this case, that is the ability to vote)”

” Fulton County District Attorney Fani Willis accused Trump and several of his associates of a sprawling racketeering conspiracy related to their efforts to overturn Biden’s win in the state. In contrast to the federal election indictment, where Trump is the only one charged so far, here 18 others were also charged for participating in this alleged conspiracy. These include famous names like Rudy Giuliani and former White House chief of staff Mark Meadows, notorious Trump lawyers like John Eastman and Sidney Powell, and lower-level Georgia players.”

“This case centers on a president’s ability to endanger the country’s national security by taking and mishandling classified documents after leaving office. Documents that Trump kept addressed everything from US nuclear programs to the country’s defense and weapons capabilities to how America could respond in the face of a possible attack. Additionally, the case looks at how Trump obstructed FBI efforts to take back the documents.”

Here Is Why Trump’s ‘Contingent’ Electors Say They Did Nothing Illegal

“Michigan Attorney General Dana Nessel this week announced criminal charges against 16 Republicans who presented themselves as the state’s electors after the 2020 presidential election. Brookings Institution Senior Fellow Norman Eisen and New York University law professor Ryan Goodman responded with a New York Times essay headlined “Trump’s Conspirators Are Facing the Music, Finally.” As Eisen and Goodman see it, the Michigan defendants participated in a criminal conspiracy to overturn Joe Biden’s victory by posing as the state’s true electors.

The defendants, of course, do not accept that narrative. As they see it, their conduct was a legitimate way of preserving objections to a contested election, grounded in historical precedent and the advice they received from Donald Trump’s lawyers. The “contingent” Trump electors in Georgia, who have been informed that they are targets of a similar investigation by Fulton County District Attorney Fani Willis, make the same basic argument. Press coverage of these investigations, which routinely describes the targets as “fake” or “bogus” electors, tends to dismiss that argument out of hand. But it is worth a closer look, because it is central to the question of whether prosecutors can prove that would-be electors who followed the Trump campaign’s advice acted with criminal intent.”

Is Trump’s Latest Indictment About Defending Democracy or Attacking Free Speech?

“French adds that “the case is no slam dunk.” But “if a prosecutor believes—as Smith appears to—that he can prove Trump knew his claims were false and then engineered a series of schemes to cajole, coerce, deceive and defraud in order to preserve his place in the White House, it would be a travesty of justice not to file charges,” he writes.”

Opinion | Why Trump Was Indicted (Again)

“the notion that Biden or Garland was somehow determined to prosecute Trump relies on a serious distortion of the public record. Indeed, that record vexed some observers, including me, who repeatedly expressed frustration over how the two men seemed to be going out of their way for most of the first two years of the administration to avoid investigating and potentially prosecuting Trump.
What changed?

The best explanation at the moment — the one that most neatly fits the available facts and a robust body of credible reporting — is that the work of the Jan. 6 select committee spurred the Justice Department to action.

The committee’s investigation uncovered new and important information that was impossible to ignore, and their hearings last summer generated intense and legitimate political and public pressure on DOJ and Garland. Ultimately, it appears that they no longer had a choice but to shift course”

“As the hearings unfolded, there was testimony from former Attorney General Bill Barr, Trump 2020 campaign manager Bill Stepien and other Trump administration officials and campaign advisers indicating that Trump knew he had lost the 2020 election even as he began his monthslong campaign to overturn the results. There was firsthand testimony about the legally baseless effort to pressure then-Vice President Mike Pence to throw the election to Trump that featured White House lawyers and Pence advisers. There was also a hearing, among others, devoted to Trump’s personal efforts to pressure — or threaten — state officials to swing their election results to him.

Given the one-sided nature of the committee’s presentation, there were reasons to question whether all of the testimony provided the full picture of the underlying events. Still, it quickly became apparent that the committee had exposed some glaring shortcomings at the Justice Department. A series of stories last summer in the New York Times and the Wall Street Journal reported that senior officials at the Justice Department were not aware of critical evidence that the committee had obtained, and in fact had been trying to avoid directly confronting Trump and his potential criminal liability. Meanwhile, some of us were complaining (again) that the department seemed to be falling short of its duty to the country, and members of the media and the public began asking much harder questions about the department’s actions — or lack thereof.”