The Trump Indictment Isn’t Really a Stretch

Many Republicans are attracted by the lawyerly view that Donald Trump’s indictment goes too far. The recent National Review article by John Yoo and John Shu reflects this position, questioning whether any statute actually covers what Trump did in trying to overturn the 2020 election. The article notes that three statutes that would normally be used for cases in which a valid election had been challenged were not cited in the Trump indictment, and questions why the prosecutor — Jack Smith — ignored them and looked elsewhere for the statutes to cite.

The answer is that all the statutes the authors referred to are based implicitly or explicitly on the use of force to interfere with an election or other event. From what we know thus far, Trump probably couldn’t have been indicted under those laws, even though many call the riot at the Capitol an insurrection and see him as the instigator.

Recently, a legal memorandum by one of the unindicted co-conspirators with Trump was published by the New York Times. It attempts to argue, with many caveats, that what Trump and others were planning could possibly be legal, but in doing so it confirms the details of the plan that Trump had apparently had in mind.  If this is the direction the prosecution is heading, it takes this case out of a dispute about what Trump actually believed about the 2020 election — the First Amendment question — and into a prosecution about a corrupt plan to overturn the election through extra-judicial or unconstitutional means.

If so, his actions are historically unique, raising the further question whether plotting to overturn a valid election is a crime under existing laws. Most Americans would probably agree that challenging an election in the courts is a valid action, but seeking to overturn the election through extra-judicial means has never been litigated.

One of the major issues raised by the Yoo/Shu article is whether it does more harm than good to try Trump for his efforts to overturn the election. “A verdict based on loose facts and flimsy law,” they write, “will leave many doubtful of the conviction and more distrustful of the Justice Department and the criminal justice system, especially at a time when public trust in our institutions is already in decline.” Actually, it could be worse than this. A conviction could alienate a large portion of the Republican Party from electoral politics — solemnizing Trump as a Republican martyr for the foreseeable future — and an acquittal could boost his chances of election in 2024.

So was it a good decision to charge Trump for attempting to overthrow the 2020 election? I think the answer is certainly yes, for the simple reason that we cannot allow a president to ignore the Constitution’s structure and meaning in an attempt to remain in office. If a plan to overthrow an election by getting the vice president to throw out valid electors and replace them with fake electors is not undermining the Constitution, what would be? There are stories that Trump considered using the military to collect allegedly fraudulent voting machines. Would that have been going too far? Without an effort to protect the Constitution, we leave the election process vulnerable to the next Trump who comes along.

It’s important to understand that only the steadfastness of Vice President Pence stood between the success and failure of Trump’s plot. If he had followed Trump’s orders and sent the list of fake electors — along with the valid electors — back to the states, it would have enabled Trump and his supporters to claim that he remained the president until this entirely false “issue” was resolved. If so, given the slow movement of the legal process, he might still be sitting in the Oval Office today.

Because Pence would not follow Trump’s directions, this parade of horribles did not occur. But does that mean that Trump should not be prosecuted?