Another "You Bumped Me So I Can Shoot You"

I get that it is asking to much to expect Trump supporters to be reasonable, but at least two things they claim about the indictments are really infuriating.

One is the suggestion that the timing is politicized, and that the Department of Justice should refrain from indicting presidential candidates in the year before the election. It is general DOJ policy not to take any action in a politically sensitive matter in the 60 days before an election.  In a matter so sensitive as a presidential election, there is certainly room to argue that 60 days is not enough, and that the DOJ should refrain from taking politically sensitive actions for 90 days before an election.  In extremely sensitive matters, one can even make the argument for six months.  (That would mean the beginning of May).  

Certainly no such consideration was extended to Hillary Clinton. The FBI investigation into her e-mail server began in July, 2015 -- the year before the election, and about the same time of year as Trump records indictment was dropped.  No one at the time claimed that it was unfair to open an investigation into the Democratic front runner so soon before the election.  FBI Director James Comey announced the decision not indict on July 5, 2016, about four months before the election.  Naturally, he denied that politics played any role.  I myself suspect that politics may have played a role -- and not necessarily improperly.  Recall, at the time Comey made his announcement, Hillary had secured the Democratic nomination and the convention was less than three weeks away.  Since it was unthinkable at the time to run a candidate under indictment, the Democrats would have had under three weeks to choose a replacement, with no mechanism in place for making such a choice.*  The result would almost certainly have been to throw the Democrats into complete disarray and throw the election to Donald Trump.  So politically fraught a decision is not to be made lightly.  I invite anyone to consider the Republican reaction if the DOJ were to drop a Trump indictment, not in July, 2023, but in July, 2024.

Well, Republicans may say, that is different.  Congressional investigators only learned about Hillary's private server the year before the election, so it was not possible to begin the investigation any sooner.  Trump's attempt to subvert the election was known before he even left office, and his keeping of classified documents was known in early 2022. But this ignores the extent to which investigation was delayed by Trump's obstruction. And in any event, can anyone doubt that it an indictment had dropped in 2022, Republicans would have cried political motivation because it affected the midterm election.  All of which comes down to saying that federal prosecutors have about one year in which to indict any candidate for President before their actions are considered politicized.

The other is the ridiculous claim that indicting Trump is criminalizing politics as usual, and that Trump's actions are no different from Hillary Clinton saying years after losing that she considered Trump to be illegitimate.  To anyone who would say that, allow me to pose the following hypothetical.  Suppose (as seems most likely) that the 2024 election is a Trump-Biden rematch. (Likely). Let us suppose that Biden spends the entire election saying that there is no way that he can lose honestly, and that if he loses, it will be the result of illegal, Jim Crow style vote suppression by Republicans.  Let us further suppose that the election is close and comes down to a handful of swing states, any one of which could sway the election, including Michigan.**  We will further suppose that Biden loses Michigan by tens of thousands of votes, but Michigan has unified Democratic control of the state government, so Biden plans to use that to reverse the outcome.

Suppose Biden and his associated start accusing Michigan Republicans of Jim Crow style voter suppression and intimidation and call out two Republican poll watchers by name, falsely accusing them of forcibly turning away minority voters.  Let us suppose that Biden and his followers file dozens of lawsuits to reverse the outcome, all of which are laughed out of court as completely lacking in merit.  Biden than pressures leaders of the Michigan legislature to declare him the winner and choose a new slate of electors.  When they refuse, he has a group of Michigan supporters meet in the Michigan capitol the day electors meet, declare themselves the true electors, and submit certificates declaring him the winner.  Let us further suppose that Biden calls up the Michigan Secretary of State and urges her to "find" just enough votes to reverse the outcome, threatening her with criminal charges if she fails to come through.  And let us suppose that Biden pressures Kamala Harris to unilaterally reject the Michigan electors on the spurious grounds that the Michigan outcome is disputed and either send it back to the legislature to reconsider, or declare him the winner.

Does anyone seriously think that Republicans would shrug all of this off as politics as usual?  Does anyone think that the party that considers it a crime for Joe Biden to so much as talk to his son's business associates would not see any criminality in all of that?

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*Hillary did not name Tim Kaine has her running mate until the convention.

**To be clear, the 2020 election did not come down to Georgia.  Trump would have to sway six swing states to alter the outcome, hence his attempt to reverse the result in all six.

The Other "Big One" in Georgia

 

Fani Willis

Confession: I have not finished reading the Georgia indictment of Donald Trump.  Not only is it 98 pages long, it is less accessible than the federal indictment, being written in dense legalese instead of plain English.  The federal is told in narrative form, or rather in multi-narrative form.  It has sections separately describing what Team Trump was doing in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin (not Nevada, for some reason), followed by a section on the pressure on Mike Pence and a section on the "exploitation" of riots at the Capitol.  Following this are four very brief sections alleging violation of four federal statutes, but never specifying which act applied to which count, or which acts were per se illegal and which were not in themselves illegal, but were taken in furtherance of a criminal conspiracy.  In other words, the federal indictment gives a clear and coherent factual narrative, but does not specify which acts violated which laws.*

The Georgia indictment is a different matter.  It charges 161 distinct acts, all in rigid chronological order, rather than narrative order.  Thus actions associated with, say, appointing a false slate of electors may be interspersed with actions associated with seeking to illegally access voting machines, or attempts to intimidate Ruby Freeman.  On the other hand, the Georgia indictment makes very clear which actions were actual crimes and which were merely taken in furtherance of the overall conspiracy.  And it is not too difficult to tell by context and proximity which actions were taken in furtherance of which crimes.

Both indictments make the false electors the center of the case.

The federal indictment charges the rather vague crimes of fraud on the United States, obstructing an official proceeding, conspiracy to obstruct an official proceeding, and conspiracy against civil rights (specifically, the right to have one's vote counted).  The Georgia indictment is more specific.  Neither the federal government nor any state, including Georgia, has specific laws forbidding people who are not electors from meeting and casting votes for the losing candidate. So the Georgia indictment charged the fake electors with impersonating public official and falsifying official documents.  Sounds reasonable to me.  It also charges everyone who lied about the election to Georgia legislative committees with false statement.  I do not know enough about Georgia law to know the difference between false statements and perjury.  Regardless, witness testimony to a legislative committee is usually given under oath, and is usually prosecutable as perjury or some similar crime for lying, so the indictment seems reasonable.  

Team Trump's attempts to pressure both the legislature and the Secretary of State to overturn the election are charged as solicitation to violate oath of office.  That is certainly reasonable and appropriate for the Secretary of State.  Many of Trump's defenders have defended his urging state legislatures to overturn the vote as protected by the right to petition.  I actually have some sympathy for this view and am not convinced that trying to persuade a legislature to pass unconstitutional legislation is a crime, absent some sort of bribe or threat.

The Georgia indictment also charges a few Georgia-specific crimes.  It was known that a local election official in Georgia illegally accessed voting machines.  It turns out she was acting at the behest of Sidney Powell.  And while the threats to Shay Moss and Ruby Freeman were well documented, up until now they were known mostly as victims.  In fact some of the defendants came to Freeman's door or made unwanted phone calls to her, offering to "protect" her if she would falsely testify that she engaged in election fraud.  Freeman refused.  Her role was actually more heroic than I had been led to understand until now.  Of all the crimes in the indictment, this harassment of an ordinary citizens seems most outrageous.

There are some questionable parts of the indictment as well.  In particular, it alleges actions outside of Georgia, and therefore beyond the authority of any Georgia prosecutor.  It defines rather broadly what constitutes an act "in furtherance" of the conspiracy.  In fact, a common technique among Trump supporters is to ask with mock incredulity whether actions such as asking for a phone number, sending a tweet, urging other to watch TV, renting a room, or encouraging others to attend a hearing are crimes.  The answer, of course, is that these things are not, by themselves, crimes, but can be crimes if undertaken as part of a criminal conspiracy.  Renting a room is not a crime.  Renting a room to commit crimes in -- in this case, impersonating electors and forging electoral certificates -- is an act in furtherance of a criminal conspiracy.  The indictment also alleges a whole serious of actions  involved in planning to assemble fake electors to cast fake certificates that are not crimes but are clearly undertaken in furtherance of a crime.  Likewise, encouraging someone to attend a legislative committee meeting in order to lie to the committee is an act in furtherance of a crime.  But I am inclined to agree that some of the actions alleged, such as sending tweets or encouraging people to watch TV, seem rather remote and dubious. While it is helpful in understanding the indictment for it to specify what acts were taken in furtherance of a conspiracy and what were actual crimes, it also feeds Trump supporters' paranoia more than the rather vague federal indictment.

And, most famously, the Georgia indictment brings in a large assortment of co-conspirators -- 19, to be specific.  All indictments up until now have either targeted Trump alone or named one or two co-conspirators at most, although the existence of others was more or less admitted.  In fact, the federal indictment names six unindicted co-conspirators, five of whom are easily identified and one who remains a mystery.  The Georgia indictment names a great many more.  Some are nationally prominent.  Some are not nationally known, but are persons of some importance in George.  A few are local election officials little known outside their county.  And a few (most notably the ones involved in intimidating Ruby Freeman) are just regular folks.  

And I am inclined to think that naming many defendants is the part of the indictment that raises the most alarm an paranoia among Trump supporters.  Up until now for all the claims of persecution and "they're coming for you next," no one was actually targeted except for Trump himself, along with a few close associates.  Naming so many people makes it easier to tell Trump supporters that they could be next.

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*It is also clear from the federal indictment that the attempt to overturn the election was more intense in Georgia than in the other states.  The other states had Republican legislatures but Democratic Secretaries of State. Team Trump therefore limited itself to trying to persuade the state legislatures to overturn the results, and, when the attempt failed, to choosing fake slates of electors.  Georgia, by contrast, had a Republican Secretary of State, so Trump repeatedly pressured him to change the vote outcome.  This was the most clearly criminal part of the attempt to overturn the election, so it is appropriate that 

The Other "Big One" is Coming Down the Pike

Fani Willis, Fulton County District Attorney

Rumor has it that the other Big One is coming down the pike, as soon as Tuesday.  Fani Willis, District Attorney for Fulton County, Georgia, is expected to indict Donald Trump for his attempt to pressure the Georgia Secretary of State into changing the election result, and possibly for other attempts to overturn the election in Georgia.

I am very curious to see how Republicans react to this one, as compared to Jack Smith's Big One.  There are some interesting similarities and differences.

On the one hand, clearly this indictment will be just as overtly "political" as the last one. On the other hand, the evidence of crime is much more straightforward, and the criminal charges can be simple and not stretch any existing law.  Falsifying vote outcomes is a well-established crime that has been prosecuted many times in the past.  On yet another hand, rumor has it that Willis is prosecuting, not just Trump for the phone call, numerous prominent Georgia Republicans and some local activists.  This is still well within her authority, but prosecuting numerous Republican leaders and activists, no matter how much they deserve it, will feed the persecution narrative. 

As an elective local District Attorney, Willis cannot be accused of being part of the "deep state," or of being under the command of Joe Biden.  But, as an elected official, she can be accused of political grandstanding and pursuing a partisan vendetta.  Fani Willis is Black.  Trump has repeatedly called her a racist and accused him of picking on him because he is White.  She is also the first woman to bring charges, which might awaken other issues for Trump and many followers.  As a state official, Trump, even as President, will not be able to stop her from prosecuting, or to pardon himself.  On the other hand, Willis will be running for reelection at the same time Trump is running for election.  Trump and his supporters can back a challenger.

So I am very curious to see what happens when the second Big One comes down, and how it compares to the first Big One.

On the Subject of Core Political Speech

The standard defense to the third indictment offered by Trump supporters is that his actions were free speech, protected by the First Amendment, and in fact, core political speech.*

Look, let's do some very simple basics here.  Not all speech is protected by the First Amendment.  For instance, if you were to go into the Corner Convenience Store, walk up to the cashier and say, "Empty out the cash registrar drawer or I will blow your head off," that does not fit within your right of free speech under the First Amendment.  (And if you really are pointing a gun at the cashier, that is not protected by your Second Amendment right to keep and bear arms.  And if you are actually just pointing a stick of deodorant under your jacket, it is still  crime).

If you walk into the Corner Convenience Store, see that they carry Bud Lite, and says, "I am outraged that you carry Bud Lite.  All your obscene profits from selling Woke Beer should be expropriated and turned over to Moms for Liberty," that is core political speech and is protected by the First Amendment.**

Suppose you follow up that speech by opening your coat to show that you have a gun (with proper concealed carry permit) and gesture menacingly toward it and add, "In fact, I'd like to ask a favor.  Would you be willing to open the cash registrar drawer?  I want to make a donation to Moms for Liberty," and empty out the drawer when the cashier opens it, that is still armed robbery and not constitutionally protected political speech.  The fact that you asked nicely and gave the illusion of choice does not make the request to open the drawer merely "aspirational" as opposed to coercive. And it is not a defense if you really do donate the money to Moms for Liberty.

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*And some detractors have suggested that Trump supporters were planning to defend him from charges of seditious incitement by arguing First Amendment.  When the charges actually came down for conspiracy to obstruct an official proceeding and violate civil rights, the just stuck to the old script because they did not have a new one.
**That being said, if you make a scene, the Corner Convenience Store can bar you from the property and have you arrested as a trespasser if you come back and that would not violate the First Amendment because the Corner Convenience Store is a private actor.  And if you make a big enough scene, you might even be charged with disturbing the peace, still within the bounds of the First Amendment.

The Obvious Question: How Much of This is Actually Illegal?

 

Donald Trump's actions were not mere politics as usual or ordinary dissent, but an attack on democracy itself.  That does not, however, necessarily mean that they were illegal.  Our system up till now has always assumed a certain degree of good faith by political candidates, and up till now that has worked well enough.  The Constitution bans ex post facto laws (i.e., criminal statutes that act retroactively), so the question has to be how well existing laws cover his behavior.  It should also be noted that some things are not crimes, but are subject to other, non-criminal penalties.  So here we go.

Trump said and encouraged his associates to say, that if he lost the election that would be proof of fraud, and alleged fraud after he lost.  That it is not a crime, but it is not necessarily protected by the First Amendment.  If these lies defamed any specific individual or organization, they are civilly actionable. Fox News has already learned that the hard way, and Rudy Guiliani is in the process of learning that the hard way.  Also, if a defamatory statement leads to harassment, death threats, and the like, it is too remote to be prosecuted as criminal incitement.  But such actions can be claimed as damages in a libel suit and can be costly.

Trump brought or encouraged others to bring 62 lawsuits to challenge the election results, all completely without merit.  The usual comment is to dismiss that as his "right," but that is not altogether true. Certainly it is true that losing candidates can, and often do, bring legitimate lawsuits.  It is also true that bringing a non-meritorious suit is not a crime. But that is not the same as saying that everyone has the "right" to file suits that are utterly without merit.  Courts can assess penalties for frivolous actions, such as requiring the loser to pay the winner's attorney's fees or a fine to the court. In extreme cases, a frivolous lawsuit can lead to disbarment, or to counter-suits for malicious prosecution or abuse of process. And, of course, anyone who lies under oath can be prosecuted for perjury.  So beware of claims that it was Trump's "right" to file any suit he wanted, however outrageous.

Trump pressured Congress and that state legislatures to overturn the vote.  Under the Constitution's Free Speech and Debate Clause, members of Congress are protected from any criminal or civil liability for any speech or vote on the floor.  Therefore, any vote to overturn the election could not be a crime, or civilly actionable, although it could be overruled by the Supreme Court.  I assume that state constitutions offer similar protections to their state legislatures.  The question, then, is whether pressuring members of a federal or state legislature to overturn the vote could be a crime.  I don't know.  The Free Speech and Debate Clause has been held not to protect bribes, so any attempt at bribery would be a crime, but I do not know of any such attempt.  Intimidation is also a crime.  I do not know enough to say whether any of Trump's pressure techniques went so far as to constitute intimidation.  The indictment seems to think that calling up members of Congress and pressuring them to change their vote while an angry mob was attempting to break in was enough to rate as intimidation.  Sounds reasonable to me, but I don't claim to know.

Trump arranged for people to falsely claim to be state electors and to submit falsified electoral certificates.  There are no specific laws against this because no one ever saw the need before.  The fake electoral certificates are clearly invalid.  Are they a crime?  The indictment focuses primarily on the elector scheme and calls it fraud and obstruction.  I don't pretend to know.

Trump pressured Georgia Secretary of State Brad Raffensperger (the only Republican Secretary of State in a swing state) to change the outcome.  That is a crime, or at least an act of criminal solicitation.  It would clearly be a crime (under federal and state law) for a Secretary of State to change an election total.  Whether Trump urging Raffensperger to do so was merely criminal solicitation or actual intimidation, I could not say.  But the fact that Trump threatened criminal action makes it sound like intimidation.

Trump encouraged the Department of Justice to circulate letters to state legislatures saying that there were serious allegations of fraud in the election and encouraging them to overturn the results.  This is false, but is it a crime?  On the one hand, it is using the machinery of the federal government to attempt to overturn an election.  On the other hand, there does not appear to be any coercion there, just an attempt at persuasion.  Someone who knows a whole lot more about election law than I do will have to answer.

UPDATE:  The answer appears to be yes, this is the crime of making false statements in an official documents.  Or rather, it would have been if the letters had gone out. The attempt was thwarted when all department heads threatened to resign en masse and make the DOJ unworkable.  The question, then, is whether this reaches the level of a criminal solicitation or attempt.

Sidney Powell, Rudy Giuliani, Michael Flynn and Patrick Byrne urged Trump to have the Department of Justice seize voting machines and re-do the election.  Acting on that suggestion would clearly have been a crime.  However, Trump did not act on that suggestion, mostly because the DOJ made extremely clear that it would not cooperate.  Powell, Giuliani, Flynn and Byrne might be chargeable for criminal solicitation (and might have a fair shot at pleading not guilty for reason of insanity).  But I don't think Trump can be charged with conspiracy for this, because he did not take any action in furtherance of such a plan.

Trump pressured Mike Pence to unilaterally reject the election outcome. I would fit this in the same category as the state legislatures.  If Mike Pence had sought to unilaterally reject elector slates, the Supreme Court would have struck down his actions as unconstitutional, but he would be safe from criminal or civil liability under the Free Speech and Debate Clause.  And unless pressuring him reached the point of intimidation, it was probably not a crime.

Trump called for a "wild" protest on that date that Congress certified the election.  Protests of this kind happen all the time and are not crimes.  If it could be proven that Trump intended the protest not just to express an opinion, but to intimidate, then it was not a crime.

Trump urged the protesters to march on the Capitol to pressure Congress.  I suppose one could call this criminal "incitement," in the sense that Trump was trying to "incite" the crowd to march outside the area of its permit.  But no one takes that seriously as a crime.  I can't find the article, but I have seen one that comments that most of the incitement appears to have been done by paramilitary members (Oath Keepers, Proud Boys, Three Percenters) who were already at the Capitol at the time of the speech and had planned their incitement in advance.  In other words, not incitement.

During the riot, Trump made no attempt to stop it, tweeted insults about Mike Pence while mobs bayed for his blood, and called or had others call  members of Congress under siege and urged them to vote to reject the electors.  I personally think that sending out a tweet denouncing Mike Pence after hearing that mobs were calling to hang him sounds like criminal incitement.  But the indictment does not charge it as such.  The indictment appears to see pressuring members of Congress to change their votes while the mob attacked as criminal intimidation, which seems reasonable.  I do not think that failure to act was a crime, even though it was outrageous, scandalous and indecent.

But this article makes a very interesting point.  The indictment does not charge any of these specific actions as crimes.  It charges them as acts taken in furtherance of a conspiracy to obstruct an official proceeding and deprive voters of their civil rights. And acts taken in furtherance of a conspiracy need not be crimes to be criminally charged.

Think, for instance, of a conspiracy to kidnap and hold a person for ransom. In furtherance of the scheme, the conspirators locate and rent a safe house, stock up to hold the hostage for a protracted period of time, buy ski masks, restraints and a telephone voice changer, and carefully observe the comings and goings in the target area. Not one of these acts taken in furtherance of the conspiracy is, standing alone, a crime. But individually and taken together, those overt acts are powerful evidence of a criminal conspiracy.

It will take me a long time to wrap my head around that in the context of a conspiracy to overturn the election. 

Donald Trump and John Kerry

 

Nope.  Not even going to go there.  John Kerry never challenged the legitimacy of George W. Bush's win in any way.  Yes, granted some paranoia-minded Bush opponents spun some crazy stories that Bush only won because Diebold voting machines rigged the outcome.  Activists say all sorts of crazy things.  Some Tea Party activists said that Barrack Obama was an illegitimate President because he was born in Kenya.  They got a lot more attention and semi-mainstream buy-in than the Diebold crowd.  Although I will concede the Diebold crowd was influential in one way.  They were a major part of the push to have paper ballot backups to ensure that no electronic rigging was possible.  And that turned out to be lucky in 2020.

Donald Trump and Stacey Abrams

 

But if Republicans like to present the you bumped me so I can shoot you to justify Donald Trump's attempt to overturn the 2020 election by comparing it to Hillary Clinton calling Trump illegitimate in a few 2019 speeches or Al Gore suing to challenge a highly contested outcome in Florida, their favorite example is Stacey Abrams' 2018 run for governor.  

And here I will admit to not being familiar with all the ins and outs of what happened.  But here are a few:

• Abrams' opponent, Brian Kemp (yes, that is the same Brian Kemp who refused to overturn the election in 2020) was Secretary of State in charge of vote counting while also running for governor.  (Imaging Republicans' reaction if a Democratic Secretary of State ran for governor and refused to recuse from vote counting).
• Kemp was fairly aggressive in purging voter roles and sluggish in accepting new registrations.
• The margin of vote was 55,000 votes -- greater than the total number of rejected votes.
• Kemp was clearly unethical on at least one occasion -- falsely accusing Democrats of cyber crimes in the waning days of the election.
• Ten days after the election, Abrams made a "non-concession" speech, acknowledging the legality, but not the moral legitimacy, of Kemp's victory, and saying that her lawyers had told her she could not expect to win a suit to overturn the outcome.
• Abrams did not sue to overturn the outcome, but her organization, Fight Fair Action, sued for prospective changes in the voting rules, and she worked to change voting rules and register more voters.
• Though Abrams did not seek to overturn the outcome, she did increasingly denounce the outcome as illegitimate until Trump demonstrated just how dangerous such talk could be.

Here is my table for Stacey Abrams:

Donald Trump	Stacey Abrams
Insisted during the election that if he lost it would be proof of fraud.*	Raised questions about the ethic of her opponent serving as Secretary of State in charge of counting ballots while also running for governor, and about some of his actions as Secretary of State. Raised continued questions after the election about the legitimacy of the outcome.* It should be noted that some of Kemp’s actions as Secretary of State were ethically questionable, but none appears to have been illegal, or to have swung the election.
Refused to concede defeat until  the January 6 insurrection was defeated and his cabinet threatened to invoke the 25th Amendment unless he conceded.*	Ten days after the election had an ungracious speech acknowledging the legality but not the moral legitimacy of her opponent’s win* and the creation of Fight Fair Action to change voting laws and defend voting rights.
Automatic recounts in all close states.	Automatic recount.
Filed or encouraged others to file over 60 lawsuits challenging the results, all of which were thrown out as completely without merit.*	Informed that no suit was likely to succeed and decided not to file.  However, Fight Fair Action did sue alleging voter suppression and did work to change voting laws and register voters after her non-concession.
Pressured legislatures in all swing states to override the results and appoint a slate of electors pledged to Trump.**	N/A, since Georgia was controlled by Republicans.
Pressured the (Republican) Secretary of State in Georgia to change the result.***	N/A, since Georgia was controlled by Republicans.
Arranged for alternative slates of electors in all swing states to claim to be the real electors and vote for Trump.**	N/A, does not apply to state elections.
Encouraged the machinery of the federal government to declare some elections fraudulent** or to void the elections, seize the ballots, and hold a do-over.***	N/A, since Georgia was controlled by Republicans.
Pressured the Vice President to either reject swing state votes for his opponent or to send the votes back to the swing state legislatures for a 10-day “investigation.”**	N/A, does not apply to state elections.
Called for a “wild” protest to pressure Congress into naming him the winner.*	No protests, did work to change election laws and register more voters.
Large riot the day Congress certified the election, that forced Congress to evacuate the Capitol and delayed the vote count by at least 6 hours.***  There is no evidence Trump foresaw the riot or intended to incite it, but he clearly relished the riot once it started and did nothing to stop it until it became apparent that the riot had been defeated.*	No riots, did work to change election laws and register more voters.
Did not attend his successor’s inauguration.*	I did not find the answer to this one.

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*Unethical, but not illegal.
**Unclear if this is illegal.
***Illegal.

Donald Trump and Al Gore

 

But Republicans are not just comparing Hillary Clinton calling Trump "illegitimate" because of Russian interference to Trump's attempt to overturn the election.  They are also comparing Trump's attempt to overturn the election to Al Gore, Stacey Abrams and even John Kerry responding to defeat. 

The the situations are in no way comparable.  The 2000 election came down to one state -- Florida.  The Florida election was decided by a few hundred votes out of more than 5.8 million cast.  Furthermore, election counting technology was not as accurate as it is today, so the margin of the vote was less than the margin of error for then-existing counting technology.  A few quirks in vote counting could sway the outcome. Under these circumstances, bringing suit on how to conduct the count was reasonable -- a whole lot more reasonable than Donald Trump's suits to overturn the results in six states, all of which he lost by margins of at least five figures.  The suit went all the way to the Supreme Court.  When the Supreme Court made a highly controversial decision in favor of Bush, Gore accepted its judgment and went on to preside (as Vice President) over the session of Congress that declared Bush the winner. In other words, Gore sought to challenge a legitimately uncertain outcome in the courts, lost, and accepted the results. Trump sought to challenge six clear defeats in court, lost, and continued looking for other ways to change the outcome. 

Or, if that is not clear enough, here is my table.

Donald Trump	Al Gore
Insisted during the election that if he lost it would be proof of fraud.*	Never claimed that defeat would be proof of fraud.
Refused to concede defeat until  the January 6 insurrection was defeated and his cabinet threatened to invoke the 25th Amendment unless he conceded.*	Did not concede defeat until the Supreme Court held that Bush was the winner.
Defeated by margins in five figures in the states of Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin.	Defeated by several hundred votes in Florida, with vote technologies that left a much higher margin for error than in 2020.
Automatic recounts in all close states.	Sought to block recount in Florida.
Filed or encouraged others to file over 60 lawsuits challenging the results, all of which were thrown out as completely without merit.*	Lawsuit to block the Florida recount that involved highly self-serving arguments by both sides, decided for Bush by the Supreme Court.*
Pressured legislatures in all swing states to override the results and appoint a slate of electors pledged to Trump.**	Did not pressure any state legislatures to alter the results.  (Useless since they were all Republicans)
Pressured the (Republican) Secretary of State in Georgia to change the result.***	Did not pressure any election officials to change the results.  (Ditto).
Arranged for alternative slates of electors in all swing states to claim to be the real electors and vote for Trump.**	No equivalent scheme.
Encouraged the machinery of the federal government to declare some elections fraudulent** or to void the elections, seize the ballots, and hold a do-over.***	Never attempted or encouraged others to use the machinery of the federal government to change the outcome.
Pressured the Vice President to either reject swing state votes for his opponent or to send the votes back to the swing state legislatures for a 10-day “investigation.”**	Presided as Vice President over the election count and certified Bush as the winner.
Called for a “wild” protest to pressure Congress into naming him the winner.*	Did not call for protests.
Large riot the day Congress certified the election, that forced Congress to evacuate the Capitol and delayed the vote count by at least 6 hours.***  There is no evidence Trump foresaw the riot or intended to incite it, but he clearly relished the riot once it started and did nothing to stop it until it became apparent that the riot had been defeated.*	No riots
Did not attend his successor’s inauguration.*	Attended the Bush inauguration.

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*Unethical, but not illegal.
**Unclear if this is illegal.
***Illegal.

Donald Trump and Hillary Clinton

 Kontemptible Kevin McCarthy has had the audacity to ask how Trump's attempts to overturn the election in 2020 are any different than Hillary Clinton calling Trump an "illegitimate president" because of Russian interference.  Or, for that matter, from Al Gore challenging the election in Florida or from certain Democrats blaming John Kerry's defeat on Diebold voting machines.  Conveniently, Kontemptible Kevin leaves out Republicans calling Barrack Obama illegitimate based on false claims that he was born in Kenya, or Bill Clinton illegitimate because he never won a majority of the popular vote.

How is it different?  I don't know.  Could it be because Hillary did not spend the whole election priming her supporters to regard any defeat as fraudulent?  Because she conceded the day after the election and only called Trump illegitimate after he had been in office several years?  Because she never tried to persuade any state officials to change the electoral votes?  And never asked Obama to deploy the machinery of the federal government to seize ballots and re-run elections?  Because she never urged Joe Biden to unilaterally reject votes in states she lost?  And never called for a protest to pressure Congress into changing the results?  And, when a riot broke out, did not use the violence as a pressure technique?  Could that be the difference, Kevin?

Just in case you still don't get it, I even made a table.

Donald Trump	Hillary Clinton
Insisted during the election that if he lost it would be proof of fraud.*	Never claimed that defeat would be proof of fraud.
Refused to concede defeat until  the January 6 insurrection was defeated and his cabinet threatened to invoke the 25th Amendment unless he conceded.*	Conceded defeat the night after the election.  Made some speeches well after Trump was inaugurated questioning his legitimacy.*
Automatic recounts in all close states.	Did not ask for recounts, although Jill Stein of the Green Party sought recounts in swing states.
Filed or encouraged others to file over 60 lawsuits challenging the results, all of which were thrown out as completely without merit.*	Did not file any lawsuits challenging the results.
Pressured legislatures in all swing states to override the results and appoint a slate of electors pledged to Trump.**	Did not pressure any state legislatures to alter the results.
Pressured the (Republican) Secretary of State in Georgia to change the result.***	Did not pressure any election officials to change the results.
Arranged for alternative slates of electors in all swing states to claim to be the real electors and vote for Trump.**	Some supporters encouraged electors to be “faithless” and vote for a more “normal” Republican, like Kasich.*
Encouraged the machinery of the federal government to declare some elections fraudulent** or to void the elections, seize the ballots, and hold a do-over.***	Never attempted or encouraged others to use the machinery of the federal government to change the outcome.
Pressured the Vice President to either reject swing state votes for his opponent or to send the votes back to the swing state legislatures for a 10-day “investigation.”**	Never suggested the Vice President could act unilaterally to change the outcome.
Called for a “wild” protest to pressure Congress into naming him the winner.*	Possibly encouraged protests of the outcome, without questioning its legitimacy.
Large riot the day Congress certified the election, that forced Congress to evacuate the Capitol and delayed the vote count by at least 6 hours.***  There is no evidence Trump foresaw the riot or intended to incite it, but he clearly relished the riot once it started and did nothing to stop it until it became apparent that the riot had been defeated.*	Antifa riots during the Trump inauguration with no serious disruption.***  No evidence that Hillary or anyone in the corridors of power encouraged the riots. Large-scale, peaceful “woman’s marches” across the country the next day to protest the Trump presidency.
Did not attend his successor’s inauguration.*	Attended the Trump inauguration.

Get it now, Kevin?  

I didn't think so.

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*Unethical, but not illegal.
**Unclear if this is illegal.
***Illegal.

Republican Responses to the "Big One"

So, the Big One has landed.  Donald Trump has finally been indicted for his attempt to overturn the 2020 election and the response has been -- interesting.  

Republican response to the first indictment, for concealing payoffs to a mistress, was not too surprising.  Unanimously, they denounced it as flimsy and politically motivated.  Plenty of people on our side agreed.  I certainly did. 

The second indictment was a different matter.  Here Republicans split.  Some legal scholars -- William Barr, the National Review, Andrew McCarthy, and others -- acknowledged that this was a legitimate crime and should be taken seriously. Even many Trump defenders made no attempt to defend him on the merits, but said that if Hillary Clinton escaped prosecution and Hunter Biden got a light sentence, then Trump should catch a break, too.  Meanwhile our side said the documents were not a great look, but hardly on a par with trying to overturn an election, and that was what we really wanted to see.

And I suppose one could say that Republicans have split.  But the split has been a whole lot more lopsided than the split over the classified documents.  William Barr has accepted the legitimacy of the third indictment. The usual suspects on the campaign trail -- Mike Pence, Chris Christie, Asa Hutchinson, and William Hurd -- have denounced Trump's actions.  But a whole lot of legal scholars who felt free to criticize Trump over the classified documents have come to his defense on the attempt to overturn an election.  So far as I can tell, the only Republican office holder to acknowledge the legitimacy of the third indictment has been Senator Lisa Murkowski of Alaska.  Presumably not by coincidence, Alaska also uses ranked choice voting, which makes Murkowski (so far as I can tell) the only Republican officer hold who has no need to fear a primary challenge.

Even Justin Amash, a sincere Libertarian and civil libertarian, has criticized the indictment.  

"The latest indictment, which I encourage everyone to read, attempts to criminalize Trump’s routine misstatements of fact and law in connection with the 2020 election," Amash wrote. The former congressman argued Trump's actions are a matter of "political contention" and moving them into the "criminal realm" is a mistake.

And, unlike these others, Amash is someone I respect, so maybe it is time to think seriously about why so many Republicans, including some who defended the documents indictment, are so vociferously opposed to this one.

Clearly, the latest indictment is more overtly "political" than the documents case.  The documents case was about something that can happen all across the ideological spectrum, and often without over political content.  Attempting to overturn an election is, by definition, as political as you can get.

The documents indictment was brought in Florida, where Trump may hold out hope for jury nullification.  The election indictment is in Washington, DC, where such an outcome is most unlikely.  (Lindsey Graham has made clear this is the critical factor for him).

But above all, there is simply no denying that a lot of the things Trump did to overturn the election, far from being "routine misstatements of fact and law," were acts so unthinkable that no one thought to forbid them.  Invariably, this poses a serious problem.  Simply put, when someone does something truly heinous -- and attempting to overturn a clear election result is truly heinous -- that no one had the foresight to make a law against, there are strong reasons to stretch existing law to ensure that the heinous acts do not go unpunished.*

The laws that Jack Smith stretched were laws against defrauding the United States, obstructing an official proceeding, conspiring to obstruct an official proceeding, and deprivation of rights.  I will give some thoughts on the official charges later.  Here it is only necessary to point out that (1) attempting to overturn an election result strikes at the very heart of our system of government and is not mere "political contention," and (2) prosecuting such an act can be extremely difficult due to the lack of precedent.

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*Of course, there are also good reasons to change the law, i.e., to pass a law expressly forbidding anyone from holding themselves out as presidential electors who were not chosen in the manner authorized by state law.  But good luck getting that past Republicans in Congress.