WASHINGTON – Unprecedented. Landmark. Unique. The superlatives fail to do justice to another potential indictment against Donald Trump − this one for allegedly trying to steal the 2020 election.
The case sails into legally and politically uncharted territory. No former president has ever faced criminal charges, but Trump could face his third case in a year after announcing Tuesday that he is the target of Justice Department special counsel Jack Smith’s investigation into potential election fraud. Another inquiry into election fraud waits in the wings, in Georgia.
Trump has dodged other bullets. He became the first president to be impeached twice and won acquittals in both Senate trials. He has pleaded not guilty in New York court to falsifying business records and in federal court to mishandling classified documents after leaving the White House, and he is trying to stave off trials until after the 2024 election.
But the latest federal case could be the most serious. The allegations under investigation include trying to overturn the 2020 presidential election after losing the popular and Electoral College vote and disrupting the peaceful transfer of U.S. power for the first time in history.
The case could be pivotal politically because Republican voters are aware of Trump’s baggage. Trump is raising money and rallying his supporters with the accusations in his quest for a second White House term, but the path could instead lead to a prison cell.
“We get our insights from precedent and history,” GOP pollster Whit Ayres told USA TODAY. “And there is no precedent and there is no history that comes close to matching this particular moment.”
What makes the latest election fraud case different?
The election fraud inquiry is different from previous allegations against Trump because of the sprawling nature of the investigation and its national scope. Trump was indicted in New York for allegedly falsifying business records to pay hush money before the 2016 election to a woman who claimed to have had sex with him. His federal indictment alleges he kept 340 classified documents at his Mar-a-Lago estate more than a year after leaving the White House.
The election investigation focuses on Trump refusing to acknowledge losing the 2020 election, recruiting GOP electors to replace Democrats in states President Joe Biden won, then urging a crowd outside the White House to “fight” for him on Jan. 6 before a mob of his supporters ransacked the Capitol.
“They go to the heart of our political system,” Jonathan Entin, a professor emeritus of law and adjunct professor of political science at Case Western Reserve University, said of the federal and Georgia election inquiries. “In that sense, they’re really serious. They’re potentially more serious than the classified documents situation.”
The target letter Trump received cited potential charges for conspiracy to defraud the United States and witness tampering. The House panel that investigated the Jan. 6 attack recommended charging him with obstructing the congressional count of Electoral College votes, recruiting alternate electors and pressuring then-Vice President Mike Pence to reject electors in his role as Senate president. Pence refused.
U.S. District Judge David Carter, who reviewed the scheme as part of a civil lawsuit, called the strategy a “coup in search of a legal theory.” Michigan Attorney General Dana Nessel announced forgery and conspiracy charges Tuesday against 16 alternate electors in that state. In Georgia, Fulton County District Attorney Fani Willis is investigating potential election fraud.
Trump’s campaign lawyers said they organized alternate electors in case his legal challenges were successful and courts overturned state results.
In another facet of the plan, Trump called Georgia Secretary of State Brad Raffensperger on Jan. 2, 2021, and urged him to “find” 11,780 votes to tip the results of the election from Biden to him. But Raffensperger told him officials found no widespread election fraud.
Trump has denied wrongdoing and described his call as “perfect.”
Matt Dallek, a presidential historian, said the investigation will test the electoral system, the judicial system and bedrock law enforcement agencies such as the FBI and Justice Department. Trump has accused the agencies of a political prosecution.
“These cases really go to the heart of the idea of a peaceful transfer of power and a sense of bedrock faith and integrity in America’s elections,” Dallek said.
Historians: Trump’s image as ‘outlaw’ captures public imagination
Presidential historians say the pending indictments are riveting because Trump is as unusual a personality as criminal charges are against a former president.
“We’ve had outlaws before that capture the country’s attention like Jesse James, Billy the Kid and John Dillinger, but we’ve never had a person with this amount of power openly defying the legal authorities. They were always on the run, on the lam, escaping apprehension,” said Douglas Brinkley, a noted presidential author, historian and professor at Rice University. “In Donald Trump, we have our only outlaw president who has wielded enormous power and is a global figure of ungodly magnitude. So it’s not as easy as simply saying we’re going to throw the book of law at him and he’s going to jail. He’s a one-man revolution, and so his followers and devotees are dug in deep for him.“
Dallek also said the pending charges − unlike previous indictments − put Trump on the same level of political peril as Richard Nixon before he resigned as resident during Watergate. But because Trump has political cover from many influential Republicans, he might be able to survive the new charges, especially if he wins reelection.
“Winning is in his view his ‘get out of jail free’ card,” Dallek said. “If this were any ordinary person, he would be in massive trouble. But because he is not an ordinary person, because it has become so politicized and seen through this frame of kind of partisan politics, it makes it makes it much more difficult for the justice system to work.”
Rep. Zoe Lofgren, D-Calif., who has long experience with presidential investigations, called the criminal charges against Trump “depressing and shocking.” She was a House staffer during the Nixon investigation and a House member for the impeachments of Bill Clinton and Trump. One difference over the decades is that Republicans turned against Nixon after listening to his tapes but many remain loyal to Trump despite the mounting evidence, she said.
“I think it’s a sad time for the country, not because the Justice Department is indicting but because of the behavior that has made them indict him,” Lofgren said. “The activity that he engaged in was a huge threat to the United States.”
Trump has benefited from fighting accusations, but will voters tire of drama?
So far, Trump has benefited − politically − from his indictments. But the load is getting heavier.
Many Republicans believe the pressures of a third indictment − involving an unprecedented effort to stay in power despite rejection by most voters − will eventually take a toll on Trump’s political standing. A similar case in Georgia would only increase his problems.
“He’s going to have scheduling issues and the weight of carrying around having to explain all of this stuff,” former New Jersey Gov. Chris Christie, a Trump rival for the GOP nomination for president, told USA TODAY. “I think over the long term is going to be a real problem for him.”
Trump has benefitted from peddling the notion that criminal cases against him are the weapons of a “deep state” determined to bring him down. Many Republicans also believe, despite a lack of proof, that the 2020 was somehow “rigged” against Trump, the reason the then-president pressured officials across the country to essentially reverse Biden’s wins in certain key states.
“Many of us have a strong sense that the government is out to get not just him, but what he represents,” Vivek Ramaswamy, a businessman and rival to Trump for the GOP presidential nomination, told USA TODAY. “And I think that that has had the effect of further solidified support behind him.”
Some Republicans said Trump’s legal problems will eventually erode his support. It’s not so much the indictments themselves, they said, but revelations of his conduct: Trying to steal an election, paying hush money over an affair, carelessness with sensitive national security information, defying a grand jury subpoena over classified documents, and a reckless and relentless bid to keep the power of the presidency.
Republican opponents also note that, while Trump remains relatively popular with Republicans, independent votes are increasingly turning away, making him a problematic candidate in a general election. But pollster Frank Luntz said a recent meeting wtih evangelical voters in Iowa revealed “they are tired of all the drama and controversy” but not necessarily looking for another candidate.
“At this moment, he has survived every controversy, and come out stronger,” Luntz said. “With Donald Trump you get drama − and there will be drama. But − and it’s a very big but − there’s no reason to look for any other candidate yet.”
Court appearances could also distract from the campaign trail. A New York state civil lawsuit against his namesake company is scheduled for October, federal prosecutors have asked to begin his classified-documents case in December, a defamation lawsuit from E. Jean Carroll is scheduled for Jan. 15 − the day of the Iowa presidential caucuses − and the New York criminal case is set for March. Trump’s lawyers asked to postpone the documents trial until after the 2024 election.
Christie, a former friend of Trump’s, said the allegations will take a personal toll on the former president as “he starts to get closer and he really starts to think about this.”
“I know him well,” Christie said. “He’s lying in bed at night staring at the ceiling and all the rest of it.”
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