The Trump Case Is Still Vulnerable

We appreciate our friend Peter Wallison’s response to our article, where we criticized the weak legal grounds for indicting former president Donald Trump for his role in the January 6, 2021, effort to block the electoral-vote count.

Wallison’s focus on Trump’s bad acts leads him to the conclusion that there must be some criminal law that applies. This is the view against which Justice Robert H. Jackson warned. Wallison concedes that, based on the public facts, Trump did not commit insurrection or seditious conspiracy. But this strengthens our arguments that stretching and expanding the plain meaning of other statutes — such as those for fraud and obstruction — will make the case vulnerable to rejection on appeal.

Wallison also observes that Trump sought to put into action a plan to select alternate electors based on unreasonable legal advice. But it is highly questionable to prosecute people based on the legal advice that they received, no matter how outlandish, especially under circumstances where the issues are novel and no judicial precedents exist. Even lawyers in Brown v. Board of Education, Miranda, Griswold, and many other Supreme Court cases argued against the existing precedent and legal mainstream of their time. Trump was not a lawyer who could judge the reasonableness of the legal advice he received from a former U.S. attorney for New York City, a prominent conservative law professor and former Supreme Court clerk, and experienced litigators. We disagree with their advice because we do not accept their factual predicate — that there was sufficient voter fraud to change the outcome of the 2020 presidential election — but we also find it difficult to conclude that these attorneys and their client acted criminally by adopting these legal views.

Wallison also discusses what could have happened if former vice president Pence had acquiesced to Trump’s demand that he reject the electoral votes from certain states or even suspend the vote count and return the votes back to the states. Prosecutors, however, are not supposed to charge people for what could have happened, but rather for what actually happened, which includes their state of mind.

In our view, the federal criminal laws do not cover the currently public facts of Trump’s conduct on January 6. The Supreme Court has urged that prosecutors not try to stretch federal fraud laws to punish hardball politics, even those that appear to include corruption short of bribery or kickbacks. New facts could come to light that would link Trump more directly to the attacks on the Capitol, which would support an insurrection or sedition charge. Congress has the power to pass bills further clarifying the Electoral Count Act or imposing civil or criminal penalties, and the president has the power to sign or veto those bills.

Wallison essentially makes out a claim that Trump should have been impeached. One of us argued at the time that Trump had committed a high crime and misdemeanor for not attempting to stop the attack on the Capitol, which amounted to a dereliction of duty. But Congress waited too long to impeach Trump until after he had left office, and thus impeachment no longer applied. The Framers also would have relied on elections and politics to allow the people to render judgment on Trump. The criminal-justice system should not substitute itself for the political process.