The Observer view on Donald Trump: America needs to see the ex-president brought to justice

The prospect of Donald Trump finally facing justice for the most serious of his many alleged crimes – conspiring to subvert the 2020 US presidential election – is cheering. Unfortunately, it has taken more than two and a half years to call the disgraced former president to account for his actions after his loss to Joe Biden. This delay has enabled Trump and his supporters to link last week’s criminal indictment to the 2024 election campaign. They denounce it as a politically motivated bid to torpedo the Republican frontrunner’s attempted comeback.

Like so much of what Trump says, this is a blatant lie – though sadly, many Americans believe it. Biden has scrupulously distanced himself from the multiple investigations into his predecessor’s conduct. For too long, the attorney general, Merrick Garland, whose justice department operates independently of the White House, failed to act – hoping, perhaps, that the Trump-Maga phenomenon would fade. That did not happen. Even so, special counsel Jack Smith was not appointed until last November.

Smith alleges, in sum, that Trump conspired to steal the election by obstructing Congress’s certification of electoral college votes on 6 January 2021, defrauding the government he led and denying the American people’s right to have their votes counted. The underlying premise linking these charges is nothing short of extraordinary. For the first time in history, a sitting president tried to overturn the basic constitutional principle on which the American republic was founded. Trump tried to murder democracy.

Smith’s decision not to charge him with outright insurrection, as recommended by Congress’s separate 6 January inquiry, reflects continuing caution.

The indictment details concerted efforts, directed by Trump, to intimidate state and local election officials, create bogus slates of electors, pursue meritless lawsuits, pressure his vice-president, Mike Pence, to hobble Congress and knowingly propagate numerous, dishonest claims of voter fraud.

“These claims were false, and the defendant knew that they were false,” Smith stated. Their aim was to “create an intense national atmosphere of mistrust and anger and erode public faith in the administration of the election”. And it worked. For the record, Biden won in 2020 by more than seven million votes. He swept the electoral college by 306 to 232. Trump was told Biden had won fair and square by Pence, his lawyers, cabinet members and intelligence chiefs and by Republican party officials around the country. Not a single court challenge succeeded. And yet he persisted in peddling his “big lie” that Biden had cheated.

Immense damage has been done to the credibility of US democracy as a result. Trust in the federal government has been shredded, sparking loose talk of civil war. US global authority and focus at a time of rising authoritarianism has been weakened. Yet according to recent polling, almost one third of Americans, and nearly 70% of Republican voters, still believe Trump’s twisted, mendacious fantasy. In truth, only insurrection and rebellion accurately describe such treacherous behaviour.

The apparent reluctance to throw the book at Trump – a charge of sedition arising from the Capitol Hill riot he incited and failed to quell has also been shelved – suggests a degree of official uncertainty about this plunge into legally uncharted waters. Sympathetic analysts insist that Smith did the smart thing in settling on four less dramatic but mutually reinforcing felony charges carrying long jail terms.

Only a fool would underestimate the difficulty of the looming courtroom showdown.

Trump’s many-layered defence is already taking shape. After pleading not guilty, he repeated his earlier assertion that he is the victim of political persecution. “Prosecutorial misconduct” will be a recurring theme. Another will be his insistence that his first amendment right to free speech legitimised all the lies he told about the election, on the grounds that he genuinely believed them to be true.

This is patently absurd. Trump is a notorious liar. During four years in office, he made over 30,000 false or misleading claims, averaging 21 a day, the Washington Post fact checkers calculated. The indictment persuasively claims he knew full well the untruth of what he said, and used “unlawful means” to advance his personal opinions. The right to speak freely is balanced by the responsibility not to infringe the rights of others. Trump did so, deliberately and repeatedly, for selfish ends. That said, proving malign intent beyond reasonable doubt will be challenging.

However it plays out legally – and with appeals, it could take years – this trial will settle little politically. It may divide Americans more deeply; many already distrust their governing system. Trump is not the sole cause, merely an ugly symptom. He has no monopoly on lies. But his arrogance is exceptional. Ignoring the judge’s warning, he immediately resumed his intimidatory tactics last week, threatening vengeance like a mafia capo on those who testify against him.

Perhaps this prognosis is too gloomy. Perhaps Republican leaders, rediscovering a moral backbone, will ultimately reject him. Perhaps non-Maga voters, appalled by the undignified sight of a former commander-in-chief wriggling and squealing to save his skin, will vote Democrat in even greater numbers than in 2020. Perhaps Biden can overcome low approval ratings, stay on his feet, and win a nation-saving victory.

America’s friends and allies will sincerely hope so. Whether run from the Oval Office, San Quentin or Guantánamo Bay, a second Trump term, with the inevitable accompanying international rows, domestic chaos and score-settling, hardly bears thinking about. Rarely has it been so important that justice be done – and be seen to be done, impartially and objectively, without fear or favour.

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