The most recent indictment of former President Donald Trump by the Biden Justice Department’s handpicked special counsel represents an un-American effort to resolve a political dispute within the legal criminal justice system.
Early in the indictment, the special counsel goes out of his way to make clear that the former president is not being prosecuted for saying the 2020 election was unfair or stolen. “The defendant had the right, like every American, to speak publicly about the election, and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won,” Jack Smith writes.
This is important, because Smith acknowledges that there is no crime in speaking out, nor does the government deeming speech to be inaccurate or untrue make it inherently illegal.
Criticism of the election, Smith claims, is fine so long as it is ineffective and leads to few consequences. The same is true of efforts to challenge election results: “He (Donald Trump) was also entitled to challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures.”
So, what was the problem? Where was the crime?
The crime, as the indictment puts it, was that the Trump allegedly engaged in a conspiracy to “defraud” the American people by using false accusations of irregularities, to justify the appointment of false electors, whom he then intended to use to challenge Joe Biden’s electors.
There is much controversy, even today, about what happened in the 2020 election, but for the purposes of this indictment, it is beside the point. The entire case hinges on a very narrow thread of logic.
It was legal, Smith argues, for Donald Trump to say the election was stolen, even if the claim was false. It was also legal for Donald Trump to pursue all legal means of challenging the results, and there is nothing inherently illegal about appointing a rival slate of electors. In fact, both campaigns appoint electors for every state, even ones they have no chance of winning. Joe Biden appointed a slate of electors for Wyoming, and Donald Trump for Massachusetts.
Nor is it illegal for a member of Congress to challenge a given slate of electors. By virtue of having been elected by their constituents, members of Congress have the right to vote however they chose for whatever reason, good or bad. Where, then, was the supposed crime?
The crime Jack Smith alleges is the old refuge of prosecutors who believe they are surrounded by smoke but cannot locate the fire: conspiracy.
It should be noted here that this is not the first time this prosecutor has acted as a political hatchet man. In 2012, Obama and other Democrats feared the rising profile of Virginia Republican Governor Bob McDonnell, who had won in 2009 with 59 percent of the vote in a state that had been trending blue. Jack Smith, then head of the Obama Justice Department’s “Public Integrity Unit,” indicted McDonnell on charges of bribery which were later unanimously overturned by the U.S. Supreme Court. But by that point, Smith’s political hit job was complete, and McDonnell’s career and marriage were in tatters.
This time around, Trump’s alleged crime was knowingly lying about the election (not a crime), to justify contesting the status of electors with a rival slate (also not a crime), in order to encourage a congressional vote (not a crime) which theoretically could have resulted in his electors replacing Biden’s, which might or might not have been wise or democratic, but would have been the prerogative of the elected Congress.
Smith’s argument, in other words, is that because Trump allegedly knew he had lost (and that claim exists at the center of the entire indictment; without it there is no case) his remaining in office would have constituted fraud.
Having posited that Trump remaining in office would constitute fraud, the indictment’s logic then suggests that anything Donald Trump or anyone linked to him did which was aimed at achieving that end also constituted fraud.
Suddenly it does not matter whether Trump’s claims about the election were true or false. They were made with the intention of committing an alleged crime – allowing Donald Trump to remain president. As for the rival slates of electors, by making themselves available for a challenge in Congress, they were supposedly taking part in a conspiracy to commit fraud.
In short, what Smith has declared is that outcomes matter more than process. Joe Biden becoming president was the correct outcome as far as the indictment is concerned. Hence, the right to free speech is conditional on it not being used to undermine the right outcome.
Donald Trump or anyone else, then, is allowed to impugn the integrity of the election or say Trump won up until the point it reduces Joe Biden’s odds of becoming President. At that point, it becomes conspiracy.
The same is true of the electoral challenges. Smith is fine with Donald Trump pursuing recounts, audits, and challenges to voting rules, provided they fail. In fact, their failure is further legal “evidence” for why the correct outcome was Biden’s inauguration, and efforts to prevent it were an attempt to foist a fraudulent outcome on the American people.
The point at which legal challenges crossed the line was the moment they had a chance of success. The reason the organization of rival electors, or efforts to pressure the vice president into challenging the electoral vote count, were considered conspiratorial is that they, unlike the lawsuits the establishment is willing to tolerate, had a chance of succeeding in their intended task. In effect, The indictment says it was only legal for Donald Trump to challenge the election futilely. Anything he did which involved a serious effort to overturn it was, by their definition, a crime.
Prosecutors here take the “it is only treason if you lose” adage and flip it on its head. Dissent is legal and protected under the First Amendment if it is ineffective. But effective dissent with any prospect of changing policy or the government is sedition.
The Biden DOJ here is standing on the shoulders of authoritarian regimes in Russia, China, and Turkey. All these states claim to be democracies, but they separate a very limited sphere of acceptable, systemic opposition, from seditious opposition defined as much by effectiveness as goals.
In Russia, someone like Igor Girkin, an FSB agent who helped seize Eastern Ukraine for Russia in 2014, could become an “extremist” engaged in “undermining the Constitutional order” by virtue of gaining too great an audience. Alexei Navalny’s crime was to organize a system of tactical “smart voting” which defeated pro-Putin candidates.
Russia may have elections, but “conspiring” to actually win them is a crime. The same charges were levied in Hong Kong after the passage of the National Security law. The pro-democracy opposition, by virtue of organizing primary elections for candidates so as to avoid dividing their vote, engaged in a conspiracy to gain a majority in the Hong Kong legislature, block the budget, and thereby undermine “national security.”
Turkey and Thailand have taken matters a step further than Biden’s prosecutors to be fair, but are fully in-line with Democratic charges that “casting doubt on the integrity of our electoral system” constitutes a “big lie” which is somehow treasonous.
One reason Turkish President Recep Erdogan won reelection is that his strongest opponent, Istanbul Mayor Ekram Imamoglu, was sentenced to prison and thereby disqualified. His crime? When Imamoglu won his office in 2019, Erdogan was so angry he forced his Interior Minister to cancel the elections and conduct a re-run which Imamoglu won by a landslide. Imamoglu called the decision “foolish” which was considered insulting a government official and thereby the state.
In Thailand, the leader of the largest party was threatened with disqualification because his party campaigned on repealing Thailand’s lese majeste laws, which ban criticism of the King. Advocating for repealing the ban was itself was deemed an act of lese majeste.
While the DOJ’s constitutional theories would be at home in Russia, China, or Turkey, they are profoundly un-American. This is not a rhetorical declaration of principle, but an observable reality.
Moreover, the conceptions the special counsel is operating under were a key feature of English law, and one of the leading causes of the American Revolution.
Prior to U.S. independence, a bane of liberty, both in England and the American colonies, had been the legal concept that royal officials represented the King, and therefore to insult them or impugn their character was to make allegations against the King – an act of treason.
Lest there be any doubt, the 1760s were replete with efforts to prosecute members of the Sons of Liberty for the crime of defaming Royal governors or suggesting resistance to tax collectors. The founders were thus determined to outlaw such practices in establishing the new U.S. government. In the process, they broke with a tradition dating back to Ancient Rome that the reputation of magistrates was inviolable.
It was not only the reputation of magistrates that was inviolable, but also their person. The founders did not believe in the distinction between legal dissent, which was content to fail against superior force, and dissent intended to succeed.
Having rejected the premise that the King’s cause was inherently just, the founders concluded that leaving what dissent was and was not legitimate in the hands of those in power would inevitably produce the interpretation seen in this indictment – one whereby legitimate dissent stopped at the point at which it threatened the hold on power of those in office.
Instead, the founders erred on the other side. George Washington faced enormous amounts of criticism during his tenure, especially during the battle over the Jay Treaty with Great Britain in 1795, which not only was libelous, but in some cases crossed the line to calls for violence. George Washington, John Jay, and other leading figures were burned in effigy, Washington right outside the windows of his office.
It must have been horrifying for Washington, both in terms of the ingratitude represented by those whose freedom he had fought for, and in the context of what had occurred in France over the past six years. But he resisted the urge to resort to violent repression, even though the military would have happily followed him. He did not arrest Jefferson, despite clear and overwhelming evidence Jefferson was not just involved in orchestrating the unrest, but openly in contact with representatives of foreign governments in so doing, in this case France.
What Washington realized and was demonstrated by the Alien and Sedition Acts was that it was not possible to separate censoring criticism of officials themselves from criticism of what they did. The Federalists who passed the Alien and Sedition Acts claimed the opposition Republicans were communicating with a foreign power, which they were, and advocating extra-constitutional defiance of the laws, something they were also guilty of.
But the simple truth was that it was a Federalist Congress which passed a law allowing Federalist prosecutors to charge Republican newspaper editors with calling for the overthrow of a Federalist government. If the overthrow or removal of the Federalist Party was itself a crime, what value was there in distinguishing between legal and illegal speech? Any speech likely to accomplish that end was seditious.
The crime the Trump special counsel has identified is conspiring to prevent Joe Biden from being inaugurated. It is unclear whether, if for instance, a majority of the House or Senate had voted to accept the rival electors, regardless of evidence, it would still have been a fraud. Is Smith’s contention that Biden deserved to win, in which case blocking that outcome through any method, including the ones Smith says Trump was entitled to use, would still be a fraud? Or was it only a fraud because Biden did win and become president, in which case Donald Trump is not being punished for allegedly attempting to succeed, but rather for attempting and then failing?
Ultimately, the events of late 2020-2021 should not have happened. They were a regrettable outgrowth of a COVID-19 pandemic unleashed from abroad and the ruthless determination of an opposition to exploit every opportunity and utilize every institutional lever to remove a president they despised.
In turn, this prompted a reaction which resorted to desperate and ill-judged expedients. The proper forum for these events to be judged is within the political process.
As it is, the special counsel’s indictment comes disturbingly close to allowing those in power to set the rules of the game for their competition.
Arthur Camman is the pseudonym of a regular writer on current affairs who has taught history at the University level for eight years. He has worked on Capitol Hill, and is familiar with the historical development of the American and British political systems.