.jpg)
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.
No comments:
Post a Comment