Our Criminal President
There’s an absurdity in US politics at the moment. We are largely viewing this election through the lens of normalcy. There is plenty of blame to go around, but in any discussion of this election should start with the fact that the Republicans have nominated a convicted felon whose charity, “university,” and primary business all committed fraud. And that’s without getting into the fact that Donald Trump was at the center of a wide-ranging plot to overturn the 2020 election, including inspiring a mob to commit violence at the US capitol in order to prevent Biden from rightfully taking office.
It was the first time in United States history we did not have a peaceful transition between administrations.
The Republican-dominated Supreme Court believes Donald Trump should not face accountability for that.
Responding to the ludicrous immunity decision, special counsel Jack Smith has filed a court brief detailing why the criminal prosecution of Donald Trump for his coup attempt should continue. Smith’s actual filing is here. I’m mostly relying on two articles about it here and here.
From the gate, Smith points out Trump’s attempt at a self-coup were almost entirely driven by private, rather than presidential actions. The latter are now off limits for prosecution, but the former are not. In the opening paragraph Smith states “Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted—a function in which the defendant, as President, had no official role.”
That latter part is a strong legal argument here. Trump had no role in how states submit electors yet he orchestrated groups of fraudulent electors in swing states he lost. He had no role in Congress certifying the election yet was making calls to multiple members of Congress even after the capitol was attacked, trying to persuade them to not vote to certify. And he had no role whatsoever in how Pence administered the joint session of Congress on 1/6, yet he pleaded with him both privately and publicly to reject Biden’s election.
If these actions were not official acts of the president, that means they’re private actions and subject to prosecution. Smith makes a compelling, and well supported, argument that’s the case.
Smith details a timeline where Trump had already started to put in action criminal acts to prevent Biden from taking office before the election was over. He told his campaign staff he was going to claim he won the election regardless of what happened and argue that mail-in ballots should not count.
Mail voting in the United States is secure. The arguments Republicans have made against mail-in voting are not based in evidence of fraud, but rather in an expectation mail-in ballots would favor Democrats.
One of the less intellectually rigorous arguments Trump and his co-conspirators made was that if Trump was in the lead in a count and then later was not, that meant fraud was happening. Counting ballots is not a race. No one is “in the lead” during a count as who has the most votes does not change - only our awareness of the ballots which have been counted. Democrats heavily out-perform Republicans in almost every urban area in the nation. And because of logistics, those areas take longer to count their ballots. A similar effect can take place with mail-in, early, and absentee ballots, but in some jurisdictions, those are counted before election night.
Michigan was one of these states where urban votes, which were counted after rural votes, but Biden over Trump. The Trump campaign knew this. They didn’t care and pressed their fraud case anyways. When informed they were possibly leading up to causing riots, Trump campaign aide Mike Roman, now indicted in multiple states for his role in this, said “Make them riot.” They weren’t dissuaded by the knowledge they lost. They knew sowing chaos would bolster their efforts to convince their base widespread fraud was taking place. These efforts culminated in the January 6th attack.
Trump claimed tens of thousands of undocumented immigrants voted in the election. (He claimed after 2016 that millions of undocumented immigrants voted in order to explain why he lost the popular vote.) Internal communications show this was completely made up and they knew it was made up. He also claimed over 10,000 dead people voted. Texts from Mark Meadows, Trump’s chief of staff, show the campaign knew the actual number here was 12 and they could find no evidence at all of a large number of dead people voting.
Shortly after the election, Trump was already pushing then RNC chair Ronna McDaniel to say Dominion’s voting machines in Michigan had been compromised in favor of Biden. Dominion would go on to win a MASSIVE defamation suit against Fox News for similar lies. The speaker of Michigan’s state house informed McDaniel he’d already investigated this conspiracy theory and that it was “fucking nuts.”
We already knew Trump was pressuring Arizona governor Doug Ducey to say Trump won Arizona. Ducey had already investigated numerous conspiracy theories about Arizona voting and knew they were fictious. He asked Trump for evidence which Trump said they were putting together for him. They never sent him anything because there wasn’t any evidence. The election was fine and Biden won the state. In multiple other swing states, Republican official told Trump he lost and even detailed why. Trump was not delusional. He knew.
A Republican I know said of January 6th there was no way to see it coming. I responded with numerous examples I’d written about before Trump took office where Trump openly encouraged violence from his supporters. Multiple people predicted Trump would use violence on 1/6 to disrupt the certification process. His former campaign manager and White House advisor (and now convicted felon) Steve Bannon said the day before that “all hell would break loose” at the capitol.
They knew. It’s what they wanted.
Trump attacked Pence DURING the 1/6 attack for not going along with the plan to avoid certifying the election. Pence’s role was purely ministerial and such discretion was not given to him. Pence told Trump this multiple times with Trump responding that Pence was too honest. As the crowd grew more violent, Pence’s secret service detail hurriedly evacuated him from the capitol to a secure location. Trump’s supporters were closing in on his location and openly saying their goal was to assassinate him. When Trump was informed of this, his reaction was “so what?”
At multiple points, months before January 6th, Trump was informed there was no widespread fraud and he had lost the election. His response to this was “the details don’t matter.” They knew they only needed to lie about there being fraud and his supporters would eat it up.
Trump’s entire legal strategy regarding his efforts to keep Biden from taking office has been based on the idea that he can’t be prosecuted because he was acting as the president when he attempted to have Pence delay Biden’s certification and when he facilitated the fraudulent electors who are now under indictment in multiple states.
Now forbidden from prosecuting “official” acts, Smith tackles this issue head on and Trump has a major problem here. Several meetings Trump’s lawyers say are covered by the newly-granted immunity involved not White House officials, but Trump’s private staff and lawyers. In fact, in one meeting where Trump pressured Pence, Trump instructed the White House counsel to NOT attend, but invited a personal lawyer. We see evidence like this throughout the filing - action Trump now claims cannot be used in a prosecution were actions only involving his personal staff.
None of this will be resolved before the election next month, but Jack Smith has made a compelling legal argument that Trump can still be prosecuted for his coup attempt. I do not know how much of this will clear the Supreme Court’s fickle restrictions but the impact on the historical record is clear.
Donald Trump is a criminal who went to great lengths to undertake the first coup attempt in United States history.
As of writing, there are 26 days until the 2024 election.
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