Perspective 90. Indicting Trump: A Step Too Far?
The select committee investigating the January 6, 2021, attack on the U.S. Capitol has referred four charges against then-President Trump to the Justice Department for possible prosecution. No former president has ever been indicted. Is this, in fact, a dangerous precedent that would justify using the judicial system in partisan ways?
No. In view of the facts of the case, the select committee would have been derelict in its duties had it not passed on the overwhelming evidence that the President of the United States did, in fact, commit crimes under at least four statutes.
In perspective, the Capitol has never before been invaded and ransacked by a violent mob organized and incited by a president (in fact it hasn’t been attacked since the British did the deed in 1814). No president before has tried to overturn an election he lost. Not Andrew Johnson in 1868, who like Trump refused to attend his successor’s inauguration. Not Samuel Tilden in 1876, even though he had (unlike Trump) good grounds for contesting the result. Not Albert Gore in 2000, who lost only because the Supreme Court decided the result.
So what are the four solid charges against Trump? Summarizing the gist of hundreds of pages of evidence, it comes down to this (in order of irrefutability):
Obstruction of an Official Proceeding. It is a crime to corruptly “obstruct, influence, or impede” any official proceeding. This one is a slam dunk; obstruction is a mild term for Trump sending his backers marching to the Capitol to “fight like hell.” And they did obstruct the proceedings. In a broader sense the entire scheme of pushing Vice President Mike Pence to set aside certified election returns was also a corrupt act of obstruction. This includes, for example, a draft letter to the Georgia legislature urging them to ditch their certified slate of electors.
Conspiracy to Defraud the United States. The same crimes just mentioned could also be cited as an attempt to defraud the United States, but with the additional charge of conspiracy “between two or more persons.” This is not difficult to find; the committee offers up a number of co-conspirators (John Eastman, Jeffrey Clark, Rudolph Giiuliani, Mark Meadows, etc.). All of the many who brought extreme pressure on Pence to ignore the legal returns were in fact conspiring to defraud.
Conspiracy to Make a False Statement. This covers anyone who “falsifies, conceals, or covers up by any trick, scheme, or device a material fact.” Again “conspiracy” is a sep further, but it’s hard not to describe Eastman’s six-step plan to overturn the election as a “scheme” that involved false assertions. The conspirators did manage to get cooperative legislators in seven states to submit fake slates of electors — after the actual returns had been certified — so that, in theory, Pence could declare a disputed election. Very tricky.
“Incite,” “Assist” or “Aid and Comfort” an Insurrection. This is a step further, since the statute has not been invoked that often since the Civil War period, and since the definition of “insurrection” is arguable. But the rioters were armed, they violently occupied the Capitol, and they even threatened to hang the Vice President of the United States. During this time, the committee noted, Trump not only failed to act against the rioters, but remarked that Pence might deserve it and in the middle of it all tweeted that the Vice President “didn’t have the courage to do what should have been done,” pouring fuel on the fire.
Had the committee not referred these charges to the Justice Department, it would have been outrageous. If the Justice Department does not indict, that will be outrageous. I remain an optimist, and hope I live to see the day when the Donald steps into a cell far removed from the comforts of Mar-a-Lago.