by Noah Feldman
This is the big one: the first time the Department of Justice has ever indicted a former president for subverting democracy by trying to steal an election he knew he had lost. The prosecution of former president Donald Trump may be the most important criminal case ever brought by the U.S. in support of our system of fair elections and the rule of law. Had Trump succeeded, we would no longer be living in a free country, but in a presidential dictatorship.
In practice, we all understand by now that only if Trump loses the 2024 election is he likely to face trial on the charges in the indictment: three charges of criminal conspiracy (to defraud the U.S., to obstruct Congress’s Jan. 6 counting of the electoral votes, and to interfere with the right to vote and have that vote counted) and one charge of obstructing an official proceeding. The trial on these four charges brought by Special Counsel Jack Smith is not likely to take place until after the 2024 election. If Trump manages to win, he will dismiss the charges against him.
But if Trump loses the election, he’ll face the prospect of prison time.
The charges leveled against Trump in this indictment are far more serious than his other legal woes, which could be dismissed as stemming from laziness, egomania or a cavalier relationship to legal rules and ethics.
The new charges are directed squarely at Trump’s efforts to break democracy by blocking the will of the American people after the 2020 election.
All the charges begin with the prosecution’s background claim, supported by ample evidence, that Trump knew he had lost the 2020 vote. He was told so repeatedly by his supporters and subordinates, from the vice president to the Department of Justice to the Director of National Intelligence to the Department of Homeland Security’s cyber security experts to Trump’s own White House lawyers. Republican state legislators as well as state and federal judges also told Trump he had lost. In other words, according to the prosecution’s theory of the case, Trump was not deluded. He was aware of his defeat. His goal was to delude the rest of us.
According to the charges, Trump then embarked on a campaign of lies. Lying — even lying about the outcome of an election — is likely protected by the First Amendment under current Supreme Court doctrine. But Trump went further. As the indictment makes clear, Trump went from state to state trying to browbeat, intimidate, and otherwise cajole officials to reverse the results of the election.
Remarkably, and rather impressively, public servants from Georgia to Michigan and Arizona to Wisconsin stood up to Trump. Many were Republicans, who must’ve understood that their careers were on the line, and who had in fact supported Trump’s candidacy. But their decency and honesty held. These state officials stood up to the President of the United States and told him he had lost the election and must stand down. In their way, they are heroes.
Similarly, Justice Department officials did their jobs, refusing to turn their institution into a tool of autocratic takeover. Vice President Mike Pence, too, declined to sell out electoral democracy. Pence stuck to his guns even after Trump tweeted that he “didn’t have the courage to do what should have been done to protect our Country and our Constitution,” a statement that was followed within a minute by the Secret Service’s decision to evacuate Pence from the Capitol as the crowd called him a traitor.
Unfortunately, in all of the extensive U.S. Code, there is no criminal prohibition specifically targeting an elected official’s effort to use deceit and pressure to overturn an election result. Trump did not (quite) seek the violent overthrow of the U.S. government, at least according to the prosecutors. You might say he sought the peaceful overthrow of the U.S. government — and that is more than bad enough.
So prosecutors had to charge Trump under three statutes that were written broadly enough to bar Trump’s conduct, even if they weren’t drafted specifically with the subversion of elections in mind.
The charge of conspiracy to defraud the United States in its exercise of a federal function reaches wide. It covers all sorts of ordinary efforts to lie to the government to get money out of it. But it is broad enough to include defrauding the government function of counting the votes and picking the new president, which is as crucial a federal function as exists.
The charge of obstructing a government proceeding, included in the Sarbanes-Oxley act of 2002, was originally aimed at evidence tampering. As written, however, it covers Trump and his co-conspirators’ efforts to obstruct Congress’s Jan. 6 proceeding to count the electoral votes and declare the new president.
The charge of conspiring to interfere with the right to vote and have one’s vote counted goes back to the Enforcement Act of 1870. It was designed to criminalize Ku Klux Klan efforts to intimidate Black voters. But its language extends to subverting the election results so that the people’s votes would not be counted.
In each of these statutes, a textualist statutory interpretation — the method now espoused by a majority of Supreme Court justices — would certainly include Trump’s conduct. An irony of his defense will be that the president who outsourced his judicial picks to the textualist Federalist Society will doubtless claim that the right way to interpret these statutes is with reference to Congress’s intent, not their language. The courts, including the Supreme Court, should reject those claims.
The upshot is that these charges will hold. If he is tried on them after losing the election, Trump will likely be convicted, and his conviction is highly likely to survive on appeal. This outcome would represent a crucial step in reestablishing a legitimate democracy. If Trump wins the 2024 election and manages to avoid even being tried for these crimes, our democracy will be profoundly weakened — and that may be just the start of our problems.
