Federal Criminal Case Against Trump (2020 Election Case)

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      Let’s Have a Face-Off on Trump’s Indictment

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      The latest Trump indictment is much more complicated than the first two Trump indictments and probably any indictment that would come out of Fulton County, Ga. It attacks a scheme that played out across several weeks, in several states, involving dozens of others, including Trump-allied activists, those cited as co-conspirators and G.O.P. hacks who tried to overturn the 2020 election in state after state.I thought the best way to understand the challenges the prosecution and the defense would face before jurors and appellate judges would be to let both sides have their say — through me. Each side’s factual and legal arguments will play out in hundreds of pages of briefs and countless hours of trial testimony and oral advocacy. Let me cut to the chase, arguing the primary issues without, I hope, losing too much of the complexity of the case.Imagine two lawyers arguing their cases for you, a nonlawyer:Prosecution: Look, I know the indictment is long — and the trial may well last for weeks — but the elevator pitch is simple. Donald Trump conspired with a number of other individuals to overturn an election that he knew he lost. That scheme included a number of elements, from deliberately lying to state legislators to defraud them into altering the results to orchestrating a fake elector scheme that cast sham Electoral College votes to threatening a state official to help Trump “find” the votes necessary to change the outcome in Georgia.Defense: Sure, that all sounds compelling, but on closer examination, the case collapses. Let’s just start with the word “knew.” You’re going to present evidence that a number of administration officials and others rendered an opinion that the election was fair and that Joe Biden won. We’re going to present evidence that Trump received an avalanche of legal counsel to the contrary. He heard from lawyer after lawyer who told him that there may well have been decisive amounts of fraud in key swing states. Trump heard from two sets of lawyers who disagreed with each other, and he decided to follow the advice of one team of attorneys over the other. Following bad legal advice shouldn’t land anyone in jail.And you well know that each and every statute in your indictment requires a showing of criminal intent. For example, your most attention-grabbing count — 18 U.S.C. Section 241 — which protects the right to vote from criminal conspiracies, requires proving my client possessed “the intent to have false votes cast.” He intended for electors to cast true votes, in his favor.You also know that the viability of two other counts — obstruction of an official proceeding and conspiracy to obstruct an official proceeding — “hangs on by a thread,” in the words of Lawfare’s Saraphin Dhanani. The statute itself is poorly written and may not even apply to Trump’s conduct, and the intent requirement may be more strenuous than you believe. After all, in an appeals court ruling upholding a verdict against a Jan. 6 defendant, Judge Justin Walker wrote in his concurrence that to prove corrupt intent, you don’t just have to prove a defendant knew he was obtaining an unlawful benefit but also that obtaining that unlawful benefit was his “objective” or “purpose.”Good luck making that case. Trump’s objective was to expose fraud.Prosecution: The people you call Trump’s lawyers, we call his co-conspirators. A number of the people that you say Trump relied on weren’t providing legal counsel in good faith; they were scheming right along with him to commit crimes. And you don’t have to trust my word on that. Look at court cases and bar actions. Several of Trump’s co-conspirators have been fined by courts and now face the potential loss of their law licenses because of the advice they gave.In fact, “advice” is the wrong word. Lawyers aren’t fined and disbarred for giving good-faith legal advice. But co-conspirators are punished for breaking the law.Moreover, you might fool Trump supporters, but you won’t fool the jury. Proving intent is not nearly as difficult as you’re telling the public. Defendants lie about their intentions all the time, and juries are fully capable of seeing through those lies. We’re going to show the jury that every credible official gave Trump the same advice, and we’re going to show that Trump thought at least some of his allies’ advice was “crazy” and that he thought Mike Pence was “too honest.” Cassidy Hutchinson told the House Jan. 6 committee that Trump told his chief of staff, Mark Meadows, something like, “I don’t want people to know we lost, Mark. This is embarrassing. Figure it out. We need to figure it out. I don’t want people to know that we lost.”The man wasn’t trying to expose fraud. He was committing fraud.Defense: You believe that Trump told Pence he was too honest? Or that he said Sidney Powell’s case was crazy? Your witnesses are lying. He never said Pence was too honest.Prosecution: So you’re telling me that Trump is going to take the stand and deny those statements to the jury? And then I get to cross-examine him?Defense: I’ll get back to you on that.Prosecution: And don’t get me started on that First Amendment defense I’ve watched you make on Fox News. First-year law students learn, as a former federal prosecutor told The Times, “there is no First Amendment privilege to commit crimes just because you did it by speaking.” Look at the indictment again. We acknowledge that Trump had the right to challenge the election and to file all those absurd lawsuits. We’re not indicting him for any of that. We’re not even indicting him simply for lying. We know that politicians have lied about elections practically since the founding of this country. We’re indicting him for entering into conspiracies, and we both know there is no First Amendment privilege to conspire to cast false electoral votes. Courts have heard cases involving fraud and conspiracies against rights — including voting rights — for decades, and the First Amendment doesn’t shield proven conspirators from criminal liability.Defense: So we’re talking about court precedents now, are we? The key precedents you cite are old. The most important Supreme Court precedent involving conspiracies against rights was written by Thurgood Marshall. Let’s just say that his jurisprudence is out of fashion with the court’s conservative majority.In reality, the Supreme Court has been busy narrowing the reach of federal fraud statutes. If you haven’t read National Review’s editorial about the case, I’d urge you to read it now. Fraud statutes are designed to prevent citizens from swindling the government out of money or tangible property. The obstruction statute is designed to stop witness tampering or destruction of evidence, not to stop litigants from making bad legal arguments about election fraud. And the conspiracy-against-rights count applies a Reconstruction-era statute that was designed to, as National Review argues, “punish violent intimidation and forcible attacks” against Black Americans who tried to vote.In other words, even if you prove the facts of your case, the statutes just don’t apply.Prosecution: Yes, I’ve read the National Review editorial, but might I direct you to the former prosecutor Ken White’s comprehensive response? The bottom line is that you’re describing what you want the law to be, not what the law is. For example, your arguments about the fraud count don’t apply to the actual fraud statute we charged. Moreover, National Review’s interpretation of the law conflicts with court precedent that’s more than a century old.In 1910 the court wrote that the definition of a conspiracy to defraud the United States “is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government.”I know you don’t think that Section 1512, the obstruction statute, applies to this case, but the United States Court of Appeals for the D.C. Circuit upheld our broader interpretation just this April — in a case you already cited, by the way. You’re banking on the Supreme Court disagreeing with a decision rendered by a circuit court majority that included a judge who once clerked for Brett Kavanaugh.As for Section 241, which prohibits a “conspiracy against rights,” once again our interpretation of the statute is supported by generations of precedent. A review of relevant case law takes us from a series of critical cases in the 1930s to the 1974 Supreme Court opinion I talked about earlier and to a conviction this year of a man named Douglass Mackey. He engineered a scheme to deceive Hillary Clinton voters into “voting” by text message rather than casting an actual, legal ballot. His scheme wasn’t violent or forcible, but it was certainly illegal.Look, lawyers make good-faith arguments to reverse or revise precedent all the time. Sometimes those arguments succeed. But you need to tell your client that the existing case law is on my side, not yours, and if he is resting his defense on the Supreme Court coming to his aid, you might want to remind him that even the justices he appointed rejected or refused to hear his legal arguments many times before.Defense: There’s a Supreme Court case you failed to mention, McDonnell v. United States. I know it doesn’t involve the statutes at issue here, but the case shows the Roberts court’s desire to narrow broad criminal statutes. A unanimous Supreme Court threw out the conviction of the former Virginia governor Robert McDonnell on the grounds that the lower courts had construed the term “official act” too broadly in a bribery case. This is a clear indication that the Supreme Court is looking to limit, not expand, the interpretation of federal criminal statutes.Also, remember the rule of lenity? When a law is unclear or ambiguous, the benefit of the doubt goes to the defendant, not the government. And again, this is a principle embraced by justices across the ideological spectrum. This term, the court used the rule of lenity to rule in favor of a defendant in a Bank Secrecy Act case, and Justices Ketanji Brown Jackson and Neil Gorsuch were in lock step agreement. I can read the judicial signs, and the signs point toward narrowing the law.Prosecution: We’re not applying new or novel interpretations to criminal law. Every single count is supported not just by the text but also by a vast amount of precedent. You say the age of our precedent is a problem. I say it’s an advantage. The law has already been interpreted. It is already clear. There is no legal ambiguity in casting fake electoral votes or in utilizing clear threats of criminal prosecution to try to coerce state officials to change the outcome of an election.Your best legal argument rests on what the law might be. Our legal argument rests on what the law actually is. You need to disrupt American law to prevail. We simply need to persuade a conservative court to remain conservative, to follow its instincts to resist radical change.Defense: We’ve not yet begun to fight. I’ve barely scratched the surface of your proof problems. Your indictment might fool Democrats and those Never Trump traitors, but it doesn’t fool me. For example, in Paragraph 66 of the indictment, you say that “fraudulent electors convened sham proceedings” to cast “fraudulent electoral ballots” at the “direction” of Trump.But that’s a conclusory statement. Where is the actual evidence that he was in command of that process and not one of his lawyers and allies? You’re making a big, bold claim, and that’s going to require big, bold evidence. And that indictment just doesn’t deliver the goods.Prosecution: The indictment describes in detail Trump’s intimate cooperation with his co-conspirators. Are you arguing they were acting on their own? That Trump was just a bystander to the fraudulent efforts on his behalf? Trump was so involved in the effort to overturn the election that he made calls. He said Georgia’s secretary of state and legal counsel faced a “big risk” of criminal prosecution if they (as we said in our indictment) “failed to find election fraud as he demanded.” He called the Republican National Committee chairwoman to put the fake electors plan in motion. Yes, Trump had free-agent allies who tried to help him steal the election, but none of the co-conspirators were free agents. They were all his partners in crime. Besides, as you well know, this indictment is the summary of our evidence, not the sum total of our evidence. Not only do we possess the evidence sufficient to make that claim; the grand jury is still at work.I think this exercise spotlights the most important issues, for now. Both sides have barely begun to fight, and the public has barely begun to consider the full range of evidence and arguments in the case.Moreover, this piece doesn’t deal at all with the effect of the prosecution on the body politic. On Tuesday, The Times published a compelling piece by a Harvard Law School professor, Jack Goldsmith, warning of the consequences of prosecuting a former president during an election campaign.My view is that the American government faces greater risks if prosecutors don’t try to punish Trump for his coup attempt. As I wrote on the day of the indictment, it’s necessary to prosecute Trump on these facts — not because a conviction is inevitable but because our nation cannot set a precedent that presidents enjoy a zone of impunity for their misconduct that no other citizen enjoys.I wouldn’t just be comfortable bringing this case to a jury; I’d be eager to make my argument. But I’d also know that Trump’s legal team has its own defenses, and it’s far from certain that a judge or a jury will agree with the prosecution’s case. But democracies aren’t sustained without risk, and prosecuting Trump is a risk our nation needs to take.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      A Bipartisan Plan to Limit Big Tech

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      More from our inbox:DeSantis Admits the Inconvenient Truth: Trump LostScenarios for a Trump Trial and the Election‘Thank You, Mr. Trump’Mushroom CloudsMacho C.E.O.s Erik Isakson/DigitalVision, via Getty ImagesTo the Editor:Re “We Have a Way for Congress to Rein In Big Tech,” by Lindsey Graham and Elizabeth Warren (Opinion guest essay, July 27):The most heartening thing about the proposal for a Digital Consumer Protection Commission is its authorship.After years of zero-sum legislative gridlock, to see Senators Warren and Graham collaborating is a ray of hope that governing may someday return to the time when opposing parties were not enemies, when each party brought valid perspectives to the table and House-Senate conference committees forged legislation encompassing the best of both perspectives.David SadkinBradenton, Fla.To the Editor:Senators Lindsey Graham and Elizabeth Warren propose a new federal mega-regulator for the digital economy that threatens to undermine America’s global technology standing.A new “licensing and policing” authority would stall the continued growth of advanced technologies like artificial intelligence in America, leaving China and others to claw back crucial geopolitical strategic ground.America’s digital technology sector enjoyed remarkable success over the past quarter-century — and provided vast investment and job growth — because the U.S. rejected the heavy-handed regulatory model of the analog era, which stifled innovation and competition.The tech companies that Senators Graham and Warren cite (along with countless others) came about over the past quarter-century because we opened markets and rejected the monopoly-preserving regulatory regimes that had been captured by old players.The U.S. has plenty of federal bureaucracies, and many already oversee the issues that the senators want addressed. Their new technocratic digital regulator would do nothing but hobble America as we prepare for the next great global technological revolution.Adam ThiererWashingtonThe writer is a senior fellow in technology policy at the free-market R Street Institute.To the Editor:The regulation of social media, rapidly emerging A.I. and the internet in general is long overdue. Like the telephone more than a century earlier, as any new technology evolves from novelty to convenience to ubiquitous necessity used by billions of people, so must its regulation for the common good.Jay P. MaillePleasanton, Calif.DeSantis Admits the Inconvenient Truth: Trump Lost Rachel Mummey for The New York TimesTo the Editor:Re “DeSantis Acknowledges Trump’s Defeat: ‘Of Course He Lost’” (news article, Aug. 8):It is sad to see a politician turn toward the hard truth only in desperation, but that is what the failing and flailing Republican presidential candidate Ron DeSantis has done.Mr. DeSantis is not stupid. He has known all along that Joe Biden was the legitimate winner of the 2020 presidential election, but until now, he hedged when asked about it, hoping not to alienate supporters of Donald Trump.Now Mr. DeSantis says: “Of course he lost. Joe Biden is the president.”In today’s Republican Party, telling the inconvenient truth will diminish a candidate’s support from the die-hard individuals who make up the party’s base.We have reached a sad point in the history of our country when we have come to feel that a politician who tells the truth is doing something extraordinary and laudable.Oren SpieglerPeters Township, Pa.Scenarios for a Trump Trial and the Election Doug Mills/The New York TimesTo the Editor:Re “Layered Case in Indictment Reduces Risk” (news analysis, front page, Aug. 6):It may well be that the special prosecutor, Jack Smith, has fashioned an indictment ideally suited for achieving a conviction of Donald Trump. However, even in the event that the trial comes before the election, there is little reason to believe that it will relieve us of the scourge of Mr. Trump’s influence on American life.First, there is the possibility of a hung jury, even in Washington, D.C. Such an outcome would be treated by Trump supporters as an outright exoneration.A conviction would not undermine his support any more than his myriad previous shocking transgressions. While the inevitable appeals would last well past the election, his martyrdom might improve his electoral chances.And were he to lose the election, he would surely claim that he lost only because of these indictments. Here he would have a powerful argument because so many of us hope that the indictments will have precisely that effect.The alternative, that he wins the election, either before or after the trial, is too dreadful to contemplate.If there is anything that can terminate the plague of Trumpism, it is for a few prominent Republicans whose seniority makes their voices important — Mitch McConnell, Mitt Romney and George W. Bush — to speak out and unequivocally state that Donald Trump is unfit for office. That they all believe this is generally acknowledged.If they fail to defend American democracy at this time, they will be complicit in what Trumpism does to the Republican Party and to the Republic.Robert N. CahnWalnut Creek, Calif.‘Thank You, Mr. Trump’Former President Donald Trump has made his 2024 race principally about his own personal grievances — attempting to convince supporters to see themselves in him.David Degner for The New York TimesTo the Editor:Re “Playing Indicted Martyr, Trump Draws In His Base” (news article, Aug. 9):Thank you, Mr. Trump, for sacrificing yourself for the greater good. And when you spend years and years and years in prison, we will never forget what you did to (oops, I mean for) us.Winnie BoalCincinnatiMushroom Clouds U.S. Department of DefenseTo the Editor:Re “A Symbol Evoking Both Pride and Fear,” by Nicolas Rapold (Critic’s Notebook, Arts, Aug. 1):Richland High School in Washington State is in an area, highly restricted during World War II, where plutonium essential to building the first atomic bombs was produced. As in areas of New Mexico, there have been numerous “downwind” cancer cases, as well as leakage of contaminated water into the Columbia River basin.Bizarrely, Richland High’s athletic teams are called the Bombers; a mushroom cloud is their symbol on uniforms and the gym floor. This must be the worst “mascot” on earth.Nancy AndersonSeattleMacho C.E.O.s Illustration by Taylor CalleryTo the Editor:Re “We’re in the Era of the ‘Top Gun’ C.E.O.” (Sunday Business, July 30):The propensity of the current class of business leaders to grab at team-building gimmicks knows no bounds. Simulating the role of fighter pilots at $100,000 a pop might give a C.E.O. a fleeting feeling of exhilaration, but it is a poor substitute for actual team-building.That happens when organizations and compensation levels are flattened to more down-to-earth levels. With some C.E.O.s pulling in pay rewards that are hundreds, if not thousands, of times more than their median employee, team-affirming commitment in the boardroom is far from genuine.Employees are not fooled by C.E.O.s trying to play Top Gun for a day, and making more in that short time than most employees will earn in a year.J. Richard FinlayTorontoThe writer is the founder of the Finlay Center for Corporate and Public Governance. More

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      Trump Tells Supporters His Indictments Are ‘For You’ on 2024 Campaign Trail

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      The former president, who has made his 2024 campaign principally about his own personal grievances, is attempting to convince supporters to see themselves in him.As lawyers for Donald J. Trump float various legal arguments to defend him in court against an onslaught of criminal charges, the former president has settled on a political defense: “I’m being indicted for you.”In speeches, social media posts and ads, Mr. Trump has repeatedly declared the prosecutions a political witch hunt, and he has cast himself as a martyr who is taking hits from Democrats and the government on their behalf.“They want to take away my freedom because I will never let them take away your freedom,” Mr. Trump told the crowd at a campaign event in New Hampshire on Tuesday. “They want to silence me because I will never let them silence you.”In two previous campaigns, 2016 and 2020, Mr. Trump presented himself to voters as an insurgent candidate who understood their grievances and promised to fight for them. Now, however, Mr. Trump has made his 2024 race principally about his own personal grievances — attempting to convince supporters to see themselves in him. He continues to argue, falsely, that the 2020 election was stolen from him, and to present it as a theft also against his voters. The legal jeopardy he now faces from multiple indictments, he tells followers, is the sort of persecution that they, too, could suffer.There is evidence that the message is resonating.Lorraine Rudd, who attended Mr. Trump’s appearance in New Hampshire, said that after his third indictment last week, in a point-by-point 45-page account of his efforts to overturn the 2020 election, she felt that she, too, could be wrongly prosecuted.“If they can do it to him and take him down, they can come for me,” Ms. Rudd, a 64-year old Massachusetts resident, said.She said she firmly agreed with Mr. Trump’s false claim that he won the 2020 election. “What, am I next?” she said.In March, when Mr. Trump announced his candidacy before any indictments, he told supporters, “I am your retribution.” The shift to the recent plaint of “I am being indicted for you” suggests a further tailoring of his campaign pitch, as he paints the criminal cases against him as an effort to prevent him from returning to the White House.In June, after being charged with retaining government secrets, Mr. Trump told a Republican gathering in Michigan: “Essentially, I’m being indicted for you.”On Aug. 3, the day of his third indictment, for seeking to overturn the 2020 election, Mr. Trump posted on his social media site that facing fraud and obstruction charges in Washington was an “honor” because, as he wrote in all caps, “I am being arrested for you.”Portraying himself as a victim of the criminal justice system — and echoing themes from when he faced an investigation over Russian influence in the 2016 campaign and his first impeachment — has served to consolidate Republican support around Mr. Trump.Since his very first indictment in March, in New York on charges related to payments to a porn star, Republican voters have buoyed Mr. Trump in polls. Congressional Republicans, mindful that the party base has largely embraced Mr. Trump’s lies about the 2020 election, have leaned into investigations of what they call the “weaponization” of federal law enforcement. And many of Mr. Trump’s 2024 Republican rivals have repeated his pledge to fire the F.B.I. director and end the Justice Department’s traditional independence from the White House.In a New York Times/Siena College poll released last week, before Mr. Trump’s latest indictment, 71 percent of Republican voters said he had not committed serious federal crimes and that Republicans needed to stand behind him.When a long-shot challenger of Mr. Trump, former Representative Will Hurd of Texas, told a Republican gathering in Iowa recently that the former president was running not to represent people who supported him in 2016 or 2020 but “to stay out of prison,’’ Mr. Hurd was booed.In public comments, Mr. Trump’s lawyers have indicated they will mount a free-speech defense in the latest case related to the 2020 election. They have argued that anything Mr. Trump said leading up to the Jan. 6, 2021, riot were merely “aspirational” requests. Those include lying about widespread fraud to voters, pressuring Mr. Pence to ignore the Constitution and asking Georgia’s secretary of state to “find” enough additional votes to help him win the state.The former president and his allies in the conservative media and in Congress are simultaneously waging a battle for public opinion by accusing Hunter Biden, President Biden’s son, of misconduct in business dealings and trying to tie allegations of shady practices to Mr. Biden himself when he was vice president. Investigations led by House Republicans have turned up no evidence of wrongdoing by President Biden, but the effort has convinced many Republicans that Mr. Trump’s indictments are part of a conspiracy to divert scrutiny from Mr. Biden and his family.On Tuesday, Mr. Trump promised to appoint a special prosecutor to investigate the Bidens, his likely political rival should he win the G.O.P. nomination. He also continued his personal attacks on Jack Smith, the special counsel in the federal cases against Mr. Trump, calling him “deranged.”And without referring to her by name, he criticized Fani T. Willis, the district attorney in Fulton County, Ga., who is Black, as a “racist.” She is overseeing a separate investigation into alleged efforts by Mr. Trump and his allies to interfere with the election in the state, where he lost to President Biden.With Mr. Trump dominating every Republican primary poll, a few 2024 rivals have lately been more direct in challenging him on the subject of the 2020 election.Gov. Ron DeSantis of Florida said this week that “of course” Mr. Trump lost re-election in his most blunt acknowledgment yet of a reality he has tiptoed around for three years. Former Vice President Mike Pence, who could be a star witness in a trial focused on Jan. 6, said that Mr. Trump pushed him to “essentially overturn the election.”Roughly an hour northwest of Mr. Trump’s rally on Tuesday night, former Gov. Chris Christie of New Jersey, one of Mr. Trump’s toughest critics in the race, mocked the former president’s proclamations.“As I’m walking around Ukraine, he’s waltzing into a courtroom in Washington, D.C., to tell us that he’s being indicted for us. For us! How lucky are we! That we have such a selfless, magnanimous leader,” Mr. Christie said, prompting laughter and a sprinkling of applause. “Because you know that the government was coming to get you and on their way to get you, lo and behold, they came across Donald Trump and they said, ‘Okay, we won’t get you, we’ll get him, for you.’”The narrative of unfair persecution by the criminal justice system, which Republicans as the party of law and order once staunchly defended, has taken strong root among Mr. Trump’s supporters.Steve Vicere, who drove all the way from his home in Florida to see Mr. Trump in New Hampshire, said the indictments were a “diversion” and represented attempts by Democrats to stop Mr. Trump from regaining power.“Everyday freedoms are being systematically taken away, and nobody ever gets held accountable,” Mr. Vicere, 54, said.Dean Brady, a limo driver from Newmarket, N.H., embraced Mr. Trump’s message that he was taking a hit on behalf of his supporters.“He’s representing us,” Mr. Brady, 60, said. “He’s not in it for himself, he could quit this and just go on with life. He’s up there because he loves America and he cares about us.”But not all Republican voters embrace Mr. Trump’s sense of victimhood. Jean Davis, who attended a barbecue in Iowa on Sunday to hear seven of Mr. Trump’s G.O.P. rivals, said that his latest indictment ought to disqualify him as a candidate.Her husband, Russ Davis, who supports Mr. DeSantis, said that if Mr. Trump were to become the nominee, his chances of defeating Mr. Biden would be “next to nothing.”“There are so many people on the Republican side who just can’t get past his loud mouth,’’ he said. More

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      The Prosecution of Donald Trump May Have Terrible Consequences

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      It may be satisfying now to see Special Counsel Jack Smith indict former President Donald Trump for his reprehensible and possibly criminal actions in connection with the 2020 presidential election. But the prosecution, which might be justified, reflects a tragic choice that will compound the harms to the nation from Mr. Trump’s many transgressions.Mr. Smith’s indictment outlines a factually compelling but far from legally airtight case against Mr. Trump. The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, of his freedom of speech and of the contours of presidential power. If the prosecution fails (especially if the trial concludes after a general election that Mr. Trump loses), it will be a historic disaster.But even if the prosecution succeeds in convicting Mr. Trump, before or after the election, the costs to the legal and political systems will be large.There is no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party’s probable nominee.This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into G.O.P. primary season. The unseemliness of the prosecution will likely grow if the Biden campaign or its proxies uses it as a weapon against Mr. Trump if he is nominated.This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead F.B.I. investigator, a former F.B.I. director who put Mr. Trump in a bad light through improper disclosure of F.B.I. documents and information, transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele Dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign.And then there is the perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter, where the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation. Credible whistle-blowers have alleged wrongdoing and bias in the investigation, though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge.These are not whataboutism points. They are the context in which a very large part of the country will fairly judge the legitimacy of the Justice Department’s election fraud prosecution of Mr. Trump. They are the circumstances that for very many will inform whether the prosecution of Mr. Trump is seen as politically biased. This is all before the Trump forces exaggerate and inflame the context and circumstances, and thus amplify their impact.These are some of the reasons the Justice Department, however pure its motivations, will likely emerge from this prosecution viewed as an irretrievably politicized institution by a large chunk of the country. The department has been on a downward spiral because of its serial mistakes in high-profile contexts, accompanied by sharp political attacks from Mr. Trump and others on the right. Its predicament will now likely grow much worse because the consequences of its election-fraud prosecution are so large, the taint of its past actions so great and the potential outcome for Mr. Biden too favorable.The prosecution may well have terrible consequences beyond the department for our politics and the rule of law. It will likely inspire ever-more-aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposite party, to the detriment of sound government.It may also exacerbate the criminalization of politics. The indictment alleges that Mr. Trump lied and manipulated people and institutions in trying to shape law and politics in his favor. Exaggeration and truth-shading in the facilitation of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. Going forward, these practices will likely be disputed in the language of, and amid demands for, special counsels, indictments and grand juries.Many of these consequences of the prosecution may have occurred in any event because of our divided politics, Mr. Trump’s provocations, the dubious prosecution of him in New York State and Mr. Smith’s earlier indictment in the classified documents case. Yet the greatest danger comes from actions by the federal government headed by Mr. Trump’s political opponent.The documents case is far less controversial and far less related to high politics. In contrast to the election fraud case, it concerns actions by Mr. Trump after he left office, it presents no First Amendment issue and it involves statutes often applied to the mishandling of sensitive government documents.Mr. Smith had the option to delay indictment until after the election. In going forward now, he likely believed that the importance of protecting democratic institutions and vindicating the rule of law in the face of Mr. Trump’s brazen attacks on both outweighed any downsides. Or perhaps he believed the downsides were irrelevant — “Let justice be done, though the heavens fall.”These are entirely legitimate considerations. But whatever Mr. Smith’s calculation, his decision will be seen as a mistake if, as is quite possible, American democracy and the rule of law are on balance degraded as a result.Watergate deluded us into thinking that independent counsels of various stripes could vindicate the rule of law and bring national closure in response to abuses by senior officials in office. Every relevant experience since then — from the discredited independent counsel era (1978-99) through the controversial and unsatisfactory Mueller investigation — proves otherwise. And national dissensus is more corrosive today than in the 1990s, and worse even than when Mr. Mueller was at work.Regrettably, in February 2021, the Senate passed up a chance to convict Mr. Trump and bar him from future office, after the House of Representatives rightly impeached him for his election shenanigans. Had that occurred, Attorney General Merrick Garland may well have decided not to appoint a special counsel for this difficult case.But here we are. None of these considerations absolve Mr. Trump, who is ultimately responsible for this mammoth mess. The difficult question is whether redressing his shameful acts through criminal law is worth the enormous costs to the country. The bitter pill is that the nation must absorb these costs to figure out the answer to that question.Jack Goldsmith, a Harvard law professor and a senior fellow at the Hoover Institution, is a co-author of “After Trump: Reconstructing the Presidency.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      If Mike Pence Is a Big Hero, We’re in Big Trouble

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      Bret Stephens: Hi, Gail. I know we’ll get to the latest Trump indictment in a moment, but I wanted to start by raising a subject we haven’t discussed in detail before: capital punishment. Last week, a jury sentenced Robert Bowers, who murdered 11 worshipers at Pittsburgh’s Tree of Life synagogue, to death. I sort of assume you’re against the death penalty but wanted to know your reaction to the verdict.Gail Collins: Bret, many folks who are opposed to the death penalty — including me — feel that if there was one time they’d like to see an exception, it’d be the Tree of Life mass murder.Bret: Agreed.Gail: Still, I wish the jury had come back with a life sentence. Tell that miserable excuse of a human being that he’s going to spend the rest of his existence alone, in a cell, being shunned and treated like the pariah he is.The death penalty just doesn’t work for me. On the intellectual side, there isn’t convincing evidence to suggest that the death penalty deters violent crime. And on the moral side, I just can’t see responding to the deliberate taking of life with deliberate taking of life.I assume you disagree?Bret: I always thought the sole purpose of capital punishment was justice, so even if the death penalty did deter violent crime, that argument wouldn’t hold water with me. But my support has softened over the years, mainly because, as I grow older, I think it’s wrong to foreclose the possibility of atonement and redemption in prison, particularly for those who committed crimes when they were young.Gail: Good thought.Bret: And yet there are some crimes that are so premeditated, hateful and cruel that I think society has to respond in the severest way possible. Life in prison with three meals a day, an hour for exercise, friendships with other inmates, answering fan mail (and there will be fan mail) — all that mocks the idea of justice. I don’t for a second doubt that justice was done when the war criminal Adolf Eichmann was hanged or the serial killer Ted Bundy was executed or the terrorist Timothy McVeigh was killed by lethal injection. Bowers belongs in their company.And, um, speaking of justice, what do we make of Trump indictment No. 3?Gail: We’ve gotten to the real bottom line, Trump-crime-wise. The country can get past a president who breaks the law in his private life, hides official documents and hides the evidence that he hides official documents. But we can’t survive a president who makes a serious attempt to wreck the election system and stay in office after he’s been voted out.That just can’t be overlooked. He has to be punished.Bret: I thought the right remedy for Jan. 6 was political, via immediate impeachment and conviction, as I wrote at the time. I worry that the latest case is going to turn on the question of whether Donald Trump truly believed he had won the election and could have his vice president reject electoral ballots. In other words, it’s going to be about Trump’s state of mind and his First Amendment rights, rather than the disgrace of his behavior, which increases the chances of his ultimate acquittal.Gail: All this drama keeps bringing me back to Mike Pence — and believe me, I never thought I’d be in a world where I wanted to be back with Mike Pence in any way, shape or form. But when the critical moment came, he followed through and declared the actual election winner the actual election winner.Bret: Sorry, but I will never buy the whole “Mike Pence was a hero” business. He was Trump’s faithful enabler for more than four years, his beard with evangelicals, his ever-nodding yes man. He was mute for the eight weeks after the 2020 election when his boss was busy denying the result. He called Kamala Harris to congratulate her only on Jan. 15, more than two months after she and Joe Biden were declared the winners. And if Pence had tried to overturn the election on Jan. 6, he’d now be facing his own federal indictment.Gail: No way I’m going to battle on behalf of the virtues of Mike Pence. You win.Bret: The only Republican I like these days is Chris Christie. I forgive him for endorsing Trump in 2016 because he’s going so hard and so eloquently against his former friend. I also think he has the right theory of the primary race, which is that the only way to beat Trump is to oppose him frontally. Unfortunately, he’s likelier to end up as Liz Cheney’s rival on “Dancing With the Stars” than he is in the White House.Gail: Well, I’d certainly pay good money to watch that season.But right now, I’m just rooting for a Christie smash-down at that Republican debate this month. Looks like he’ll qualify. And I guess Trump will be too chicken to attend, right?Bret: My guess, too. He has such a commanding lead over the other Republicans that a debate can only hurt him, particularly with Christie in the ring.Switching topics: Congress and spending!Gail: My favorite!Bret: I’d like to propose a legislative idea to you and see if we can find common ground. Right now we have serious problems with our defense-industrial infrastructure. Our shipyards don’t have enough resources to build sufficient numbers of submarines, destroyers and frigates to increase the size of the Navy. Many of our existing ships must wait years for necessary repairs even as we face a growing maritime challenge from China. We’re struggling to replace all of the munitions we’ve given to Ukraine, especially artillery shells but also Stingers and Javelins. And inflation has eaten away at the value of our defense dollars. This doesn’t get a lot of mainstream attention, but people close to the problem understand that it borders on an emergency.So my suggestion is that pro-Ukraine Democrats and anti-China Republicans — and vice versa — unite around legislation that would fund a five-year, $250 billion supplemental defense bill to refurbish our defense infrastructure, create thousands of unionized jobs, restock our munitions and help our allies. In honor of Franklin Roosevelt, I would call it the Arsenal of Democracy Bill. Are you on board?Gail: Hmm. Appreciate your concerns about the shortage of military supplies, and I feel pretty supportive of our aid to Ukraine.My big reservation, however, is that the Pentagon doesn’t really need the extra money. It could come up with the funds itself if it would just cut back on waste. The infamous overcharging by suppliers, for instance, and the purchase of way more planes and weapons than we need.Bret: There’s waste in every government program. Progressives mainly seem to notice it when it comes to the one item of government spending they don’t like.Gail: Defense spending tends to get bipartisan support, not so much because it’s worthy as because so many lawmakers see the money going into their districts. Good target for conservative cost cutting.Sorry, F.D.R.Bret: This seems to me an opportunity for a real bipartisan victory that brings the country around the sensible objective of being strong in the face of aggressive autocracies. I’m picturing a bill sponsored by Richard Blumenthal, one of Connecticut’s two Democratic senators, whose state makes many of our nuclear submarines, and Mike Gallagher, the intelligent and sensible Republican congressman from Wisconsin.Gail: Fine lawmakers, but I’m still not buying that one.Bret: OK, enough of my legislative fantasies. Question for you: Considering that the economy is doing relatively well, why aren’t Biden’s poll numbers better — not even on how he handles the economy?Gail: Excellent question. You’d think a guy who passes breakthrough legislation on everything from education to global warming, who has done a terrific job handling a very troubled economy and is respected as a leader around the world would be superpopular. And I truly think if you had an actual election right now, people would turn out in droves to give Biden another term.Bret: I wouldn’t be so sure. The latest New York Times/Siena poll has Trump and Biden in a dead heat. Sixty-five percent of voters think the country is on the wrong track. Food prices keep moving up. The effects of the migration crisis, which have now hit so many places far north of the border, will be felt for years in housing, the school system, even parks. There’s a palpable sense of urban decay in one city after another. Kamala Harris makes a lot of independent voters nervous. Also — and I can’t say this enough, even if it isn’t nice — Biden just seems feeble.Gail: I said if we had an election now, they’d turn out in droves to vote for Biden. Not that they’d be excited about it. The ideal opposition to a crazy, irresponsible former reality TV star isn’t a calm, 80-year-old career politician. I think people are yearning for somebody who’s charismatic and able to get them wildly excited about the future — like the early Barack Obama.We’ll see if anybody pops up.Bret: That person would be Gretchen Whitmer, the governor of Michigan. But I guess we’re just going to have to accept the cards we’re dealt. Feeble versus evil. Can’t America do better?The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Trump Calls for Recusal of Judge as His Lawyer Denies Pence’s 2020 Claims

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      Former President Donald J. Trump spent the weekend on the attack on Truth Social while his lawyer, John F. Lauro, ran through a gantlet of interviews Sunday morning.Appearing on five television networks Sunday morning, a lawyer for former President Donald J. Trump argued that his actions in the effort to overturn the 2020 election fell short of crimes and were merely “aspirational.”The remarks from his lawyer, John F. Lauro, came as Mr. Trump was blanketing his social media platform, Truth Social, with posts suggesting that his legal team was going to seek the recusal of Judge Tanya S. Chutkan, the federal judge overseeing the case, and try to move his trial out of Washington.With his client facing charges carrying decades in prison after a federal grand jury indicted Mr. Trump for his role in trying to overturn the election, his third criminal case this year, Mr. Lauro appeared in interviews on CNN, ABC, Fox, NBC and CBS. He endeavored to defend Mr. Trump, including against evidence that, as president, he pressured his vice president, Mike Pence, to reject legitimate votes for Joseph R. Biden Jr. in favor of false electors pledged to Mr. Trump.“What President Trump didn’t do is direct Vice President Pence to do anything,” Mr. Lauro said on CNN’s “State of the Union.” “He asked him in an aspirational way.”Mr. Lauro used the same defense on NBC’s “Meet the Press,” when asked about Mr. Trump’s now-infamous call to Georgia’s secretary of state, Brad Raffensperger. During that call, President Trump pressured Mr. Raffensperger to “find 11,780 votes, which is one more than we have,” to win the state and suggested that Mr. Raffensperger could face criminal repercussions if he did not.“That was an aspirational ask,” Mr. Lauro said.His portrayal of Mr. Trump’s approach is at odds with two key moments in the indictment.In one, prosecutors say that on Jan. 5, 2021, Mr. Trump met alone with Mr. Pence, who refused to do what Mr. Trump wanted. When that happened, the indictment says, “the defendant grew frustrated and told the Vice President that the defendant would have to publicly criticize him.”Mr. Pence’s chief of staff, Marc Short, then alerted the head of Mr. Pence’s Secret Service detail, prosecutors said.That same day, after The Times reported that Mr. Pence had indeed told Mr. Trump that he lacked the authority to do what Mr. Trump wanted, the president issued a public statement calling the report “fake news.” According to the indictment, Mr. Trump also falsely asserted: “The Vice President and I are in total agreement that the Vice President has the power to act.”As Mr. Lauro made the rounds on all five Sunday news shows — what is known as the “full Ginsburg,” from when Monica Lewinsky’s lawyer, William Ginsburg, did the same amid allegations about her affair with President Bill Clinton — Mr. Trump waged his own campaign on Truth Social.“WOW, it’s finally happened! Liddle’ Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side,” Mr. Trump wrote on Saturday. A few days earlier, he mocked Mr. Pence, now a 2024 rival, for “attracting no crowds, enthusiasm or loyalty from people who, as a member of the Trump Administration, should be loving him.”Mr. Trump went on: “I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was ‘too honest.’”His attack came after a judge warned Mr. Trump against intimidating witnesses and after prosecutors flagged another Truth Social post by Mr. Trump as potentially threatening.On Sunday, Mr. Trump also attacked Jack Smith, the special counsel in the Jan. 6 case, and Representative Nancy Pelosi, Democrat of California, calling Mr. Smith “deranged” and Ms. Pelosi “sick” and “demented.”In one all-caps message, Mr. Trump accused Mr. Smith of waiting to bring the case until “right in the middle” of his election campaign.In the other posts, Mr. Trump attacked Ms. Pelosi, the former House speaker, who recently said that the former president had seemed like “a scared puppy” before his arraignment. “She is a sick & demented psycho who will someday live in HELL!” Mr. Trump wrote.And he channeled his grievances with the court process toward Judge Chutkan and toward the population of Washington, D.C., writing that he would never get a “fair trial.”For his part, Mr. Pence has been criticizing Mr. Trump’s actions in carefully calibrated terms. He has repeatedly used the same phrases, arguing that anyone who “puts himself over the Constitution should never be president of the United States.” He repeated similar lines on Sunday on CNN’s “State of the Union,” following Mr. Lauro’s appearance, and on CBS’s “Face the Nation.”“What I want the American people to know is that President Trump was wrong then and he’s wrong now: that I had no right to overturn the election,” Mr. Pence told the CNN anchor Dana Bash. “I had no right to reject or return votes, and that, by God’s grace, I did my duty under the Constitution of the United States, and I always will.”Maggie Haberman More

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      The Normal Paths to Beating Trump Are Closing

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      In the quest to escape Donald Trump’s dominance of American politics, there have been two camps: normalizers and abnormalizers.The first group takes its cues from an argument made in these pages by the Italian-born economist Luigi Zingales just after Trump’s 2016 election. Comparing the new American president-elect to Silvio Berlusconi, the populist who bestrode Italian politics for nearly two decades, Zingales argued that Berlusconi’s successful opponents were the ones who treated him “as an ordinary opponent” and “focused on the issues, not on his character.” Attempts to mobilize against the right-wing populist on purely moral grounds or to rely on establishment solidarity to deem him somehow illegitimate only sustained Berlusconi’s influence and popularity.The counterargument has been that you can’t just give certain forms of abnormality a pass; otherwise, you end up tolerating not just demagogy but also lawbreaking, corruption and authoritarianism. The more subtle version of the argument insists that normalizing a demagogue is also ultimately a political mistake as well as a moral one and that you can’t make the full case against a figure like Trump if you try to leave his character and corruption out of it.Trump won in 2016 by exploiting the weak points in this abnormalizing strategy, as both his Republican primary opponents and then Hillary Clinton failed to defeat him with condemnation and quarantines, instead of reckoning with his populism’s substantive appeal.His presidency was a more complicated business. I argued throughout, and still believe, that the normalizing strategy was the more effective one, driving Democratic victories in the 2018 midterms (when the messaging was heavily about health care and economic policy) and Joe Biden’s “let’s get back to normal” presidential bid. Meanwhile, the various impeachments, Lincoln Project fund-raising efforts, Russia investigations and screaming newspaper coverage seemed to fit Zingales’s model of establishment efforts that actually solidified Trump’s core support.But it’s true that Biden did a fair bit of abnormalizing in his campaign rhetoric, and you could argue that the establishment panic was successful at keeping Trump’s support confined to a version of his 2016 coalition, closing off avenues to expand his popular appeal.Whatever your narrative, the events of Jan. 6 understandably gave abnormalizers the upper hand, while inflation and other issues took the wind out of the more normal style of Democratic politics — leading to a 2022 midterm campaign in which Biden and the Democrats leaned more heavily on democracy-in-peril arguments than policy.But when this abnormalizing effort was successful (certainly more successful than I expected), it seemed to open an opportunity for normalizers within the Republican Party, letting a figure like Ron DeSantis attack Trump on pragmatic grounds, as a proven vote loser whose populist mission could be better fulfilled by someone else.Now, though, that potential dynamic seems to be evaporating, unraveled by the interaction between the multiplying indictments of Trump and DeSantis’s weak performance so far on the national stage. One way or another, 2024 increasingly looks like a full-abnormalization campaign.Post-indictments, for DeSantis or some other Republican to rally past Trump, an important faction of G.O.P. voters would have to grow fatigued with Trump the public enemy and outlaw politician — effectively conceding to the American establishment’s this-is-not-normal crusade.In the more likely event of a Biden-Trump rematch, the remarkable possibility of a campaign run from prison will dominate everything. The normal side of things won’t cease to matter, the condition of the economy will still play its crucial role, but the sense of abnormality will warp every aspect of normal partisan debate.Despite all my doubts about the abnormalization strategy, despite Trump’s decent poll numbers against Biden at the moment, my guess is that this will work out for the Democrats. The Stormy Daniels indictment still feels like a partisan put-up job. But in the classified documents case, Trump’s guilt seems clear-cut. And while the Jan. 6 indictment seems more legally uncertain, it will focus constant national attention on the same gross abuses of office that cost Trumpist Republicans so dearly in 2022.The fact that the indictments are making it tougher to unseat Trump as the G.O.P. nominee is just tough luck for anti-Trump conservatives. Trump asked for this, his supporters are choosing this, and his Democratic opponents may get both the moral satisfaction of a conviction and the political benefits of beating a convict-candidate at the polls.But my guesses about Trump’s political prospects have certainly been wrong before. And there is precedent for an abnormalization strategy going all the way to prosecution without actually pushing the demagogue offstage. A precedent like Berlusconi, in fact, who faced 35 separate criminal court cases after he entered politics, received just one clear conviction — and was finally removed from politics only by the most normal of all endings: his old age and death.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTOpinion) and Instagram. More