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.