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      When the Law Is Not a Trump Card

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      The multiplying indictments of Donald Trump, I argued a couple of weeks ago, are putting an end to all attempts to simply practice normal politics in 2024. For both his Republican primary opponents and eventually President Biden, the ongoing efforts to put a former president in prison will shape and warp and shadow every effort to make more prosaic political arguments against a Trump restoration.But there is a corollary to this point, brought home by the conjunction of this week’s Georgia indictment and an argument from two conservative legal scholars that the 14th Amendment’s third article, aimed at excluding Confederates who had betrayed oaths to the Union from political office, should apply to Trump after the events of Jan 6. If the legal challenges against Trump have the power to shape the democratic politics of 2024, the shaping power also works the other way. As extraordinary judicial proceedings alter democratic politics, the legal arena is inevitably politicized as well, undermining its claim to standing some distance outside and above democratic realities.This isn’t a judgment on the legal merits of any of the Trump indictments. It doesn’t matter how scrupulous the prosecutor, how fair-minded the judge; to try a man, four times over, whom a sizable minority of Americans believe should be the next president, is an inherently political act. And it is an especially political act when the crimes themselves are intimately connected to the political process, as they are in the two most recent indictments.The prosecutions seek to demonstrate that not even a president is above the law. But if Trump is indeed the Republican nominee, the proceedings against him will potentially end by subjecting the judicial to the political, the law to raw politics, because millions of Americans can effectively veto the findings of the juries by simply putting Trump in the White House once again. And even if they do not make that choice (I think they probably won’t), even if the polls currently overestimate Trump’s strength (I think they probably do), the entire election will still be an object lesson in the supremacy of the political, because everyone will see that the court rulings aren’t actually final, that political combat is stronger than mere law.You can see all that and still support Trump’s prosecutions as a calculated but necessary risk — in the hopes that having him lose twice, in the courts and at the ballot box, will re-establish a political taboo against his kind of postelection behavior and on the theory that this outcome is worth the risk that the whole strategy will fail completely if he wins.If you see things that way, good; you see clearly, you are acting reasonably. My concern is that not enough people do clearly see what’s risked in these kinds of proceedings, that many of Trump’s opponents still regard some form of legal action as a trump card — that with the right mix of statutory interpretation and moral righteousness, you can simply bend political reality to your will.Certainly that’s my feeling reading the argument that the 14th Amendment already disqualifies Trump from the presidency and that indeed no further legal proceedings — no trial for rebellion or treason, no finding of guilt — are necessary for state officials to simply exclude him from their ballots.The authors of this notable argument, William Baude and Michael Stokes Paulsen, are serious conservative legal scholars of the originalist persuasion, and their claims are couched in close attention to the text of the amendment and its history. Since I am not a legal scholar, the fact that I do not find these arguments remotely plausible can be partially discounted, so I would direct you first to two different critiques: one from a conservative scholar and friend of the authors, Stanford’s Michael McConnell, and one from a critic of originalism, Georgia State’s Eric Segall.McConnell suggests that to avoid giving the 14th Amendment’s provisions a dangerously anti-democratic breadth, such that all manner of normal democratic dissent and rabble-rousing could be deemed disqualifying, we should assume that they refer to a large-scale insurrection, military rebellion or explicit civil war. Applying them to a political protest-turned-riot, even a riot that disrupted the transfer of presidential power, risks a serious abuse of power — “depriving voters of the ability to elect candidates of their choice” — without adequate limitations on its use.Meanwhile, Segall questions the authors’ claim that the amendment’s provisions are “self-executing,” that they can be applied to Trump or any other supposed insurrectionist immediately. He points out that this interpretation was already rejected in 1869 by Salmon Chase, then the chief justice of the United States, one year after the amendment’s ratification in the only ruling we have on this question. This is acknowledged by Baude and Paulsen, to be sure, who argue at length that Chase was wrong. But they are still in the dubious position of claiming that theirs is the true “original” reading of the amendment, seeking some way to deal with the problem of Donald Trump a century and a half later, rather than the reading offered at the time of ratification that has stood unchallenged since.Then here is the point that I, a non-scholar, want to make (though I should note that Segall makes it as well): Even if Baude and Paulsen were deemed correct on some pure empyrean level of constitutional debate, and Salmon Chase or anyone else deemed completely wrong, their correctness would be unavailing in reality, and their prescription as a political matter would be so disastrous and toxic and self-defeating that no responsible jurist or official should consider it.The idea that the best way to deal with a demagogic populist whose entire appeal is already based on disillusionment with the established order is for state officials — in practice, state officials of the opposing political party — to begin unilaterally excluding him from their ballots on the basis of their own private judgment of crimes that he has not been successfully prosecuted for … I’m sorry, the mind reels. It should not happen, it would not work if it did happen, John Roberts and four more justices would not uphold it, and it would license political chaos to no good purpose whatsoever. And if the legal theorist’s response is that this isn’t the “best” way to deal with Trump, it’s just the way that the Constitution requires, then so much the worse for their theory of the Constitution.There is an irony here, which is that a similar kind of legal mentality influenced Trump’s campaign to overturn the results of the 2020 election. John Eastman’s argument that Mike Pence could interpose himself between the official results of the election and Joe Biden’s inauguration was a much more fanciful constitutional argument than the one that Baude and Paulsen make. But it was similar in imagining a particular interpretation of the Constitution as something that can just be deemed correct and then imposed by a particular actor — the vice president in the Eastman case, state election officials in theirs — without regard to anything that would naturally follow in the realm of the political.What would have probably followed from the Pence maneuver, as his own lawyer advised him, would have been either a swift smackdown from the courts or the vice president standing alone against both houses of the legislative branch. (This seems like one reason Eastman’s crackbrained proposal was not a rebellion under 14th Amendment definitions; if Confederate secession could have been defeated through a quick appeal to the Supreme Court, it would not have been much of a rebellion either.)But imagine, if you will, a world where Eastman had uncovered, days before Jan. 6, some piece of historical evidence that raised his theory’s status from “desperate Trumpist motivated reasoning” to “an idea that merits some academic debate.” Suppose even that a few liberal legal scholars had been forced to concede a little ground to his position. Would this in any way have changed the total political folly of the Pence maneuver, the impossibility of levering a presidential outcome from the vice president’s supervisory position, the purposeless destabilization that such a gambit would entail?I say that it would not, that where legal theory touches politics in this way it must necessarily deal with political considerations, that appeals to law and legal text alone are not enough to settle matters if political realities are against you. That is the cold knowledge that all of us watching Trump’s extraordinary indictments converge with his extraordinary campaign need to carry into 2024.BreviaryNic Rowan on Bill WattersonJustin E.H. Smith sings a ballad of Generation XJohn Duggan on Sally Rooney and CatholicismAlex Tabarrok on the acts of Saint ThomasNotes for a Susannah Black Roberts essay on the post-Christian right More

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      The Georgia Case Against Trump Is The Simplest and Most Direct

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      The best way to think about Georgia’s sprawling indictment against Donald Trump and his allies is that it is a case about lies. It’s about lying, conspiring to lie and attempting to coax, coerce and cajole others into lying. Whereas the attorney general of Michigan just brought a case narrowly focused on the alleged fake electors in her state (Trump is not a defendant in that one), and the special counsel Jack Smith brought an indictment narrowly focused on Trump’s efforts to overturn the 2020 election, the Fulton County district attorney, Fani Willis, has brought a case about the entire conspiracy, from start to finish, and targeted each person subject to her jurisdiction for each crime committed in her jurisdiction.In other words, this indictment is ambitious. But it also answers two related questions: Why bring yet another case against Trump in yet another jurisdiction? Isn’t he going to face a federal trial in Washington, D.C., for the same acts outlined in the Georgia indictment?The answers lie in the distinctions between state and federal law. Georgia law is in many ways both broader and more focused than the federal statutes at issue in Smith’s case against Trump. The breadth is evident from the racketeering charges. As Norm Eisen and Amy Lee Copeland wrote in The Times, Georgia’s racketeering statute allows prosecutors to charge, among other crimes, a number of false statement statutes as part of a generalized criminal scheme. In other words, rather than seeing each actionable lie as its own, discrete criminal act, those lies can also be aggregated into part of a larger whole: an alleged racketeering enterprise designed to alter the results of the Georgia presidential election.Yet it’s the focus of Georgia law that’s truly dangerous to Trump. The beating heart of the case is the 22 counts focused on false statements, false documents and forgery, with a particular emphasis on a key statute: Georgia Code Section 16-10-20, which prohibits false statements and writings on matters “within jurisdiction of state or political subdivisions.” The statute is a state analog to a federal law, 18 U.S.C. Section 1001, which also prohibits false statements to federal officials on matters within their jurisdiction, but the Georgia statute is even broader.Simply put, while you might be able to lie to the public in Georgia — or even lie to public officials on matters outside the scope of their duties — when you lie to state officials about important or meaningful facts in matters they directly oversee, you’re going to risk prosecution. That’s exactly what the indictment claims Trump and his confederates did, time and time again, throughout the election challenge.The most striking example is detailed in Act 113 of the indictment, which charges Trump with making a series of false statements to Georgia’s secretary of state, Brad Raffensperger, and his deputies in Trump’s notorious Jan. 2, 2021, telephone call. Most legal commentators, myself included, focused on that call because it contained a not-so-veiled threat against Raffensperger and his counsel. In recorded comments, Trump told them they faced a “big risk” of criminal prosecution because he claimed they knew about election fraud and were taking no action to stop it.Willis’s focus, by contrast, is not on the threats but rather on the lies. And when you read the list of Trump’s purported lies, they are absolutely incredible. His claims aren’t just false; they’re transparently, incandescently stupid. This was not a sophisticated effort to overturn the election. It was a shotgun blast of obvious falsehoods.Here’s where the legal nuances get rather interesting. While Willis still has to prove intent — the statute prohibits “knowingly and willfully” falsifying material facts — the evidentiary challenge is simpler than in Smith’s federal case against Trump. To meet the requirements of federal law, Smith’s charges must connect any given Trump lie to a larger criminal scheme. Willis, by contrast, merely has to prove that Trump willfully lied about important facts to a government official about a matter in that official’s jurisdiction. That’s a vastly simpler case to make.Yes, it is true that the individual lying allegations are also tied to much larger claims about a criminal conspiracy and a racketeering enterprise. But if I’m a prosecutor, I can build from that single, simple foundation: Trump lied, and those lies in and of themselves violated Georgia criminal law. Once you prove that simple case, you’ve laid the foundation for the larger racketeering claims that ratchet up Trump’s legal jeopardy. Compounding the danger to Trump, presidents don’t have the power to pardon state criminal convictions, and even Georgia’s governor doesn’t possess the direct authority to excuse Trump for his crimes.If Trump’s comments on Truth Social are any indication, he may well defend the case by arguing that the Georgia election was in fact stolen. He may again claim that the wild allegations he made to Raffensperger were true. That’s a dangerous game. The claims are so easily, provably false that the better course would probably be to argue that Trump was simply asking Raffensperger about the allegations, not asserting them as fact.But if Trump continues to assert his false claims as fact, then Willis has an ideal opportunity to argue that Trump lied then and is lying now, that he’s insulting the jury’s intelligence just as he insulted the nation’s intelligence when he made his claims in the first place.But declaring that the core of the Georgia case is simpler than the federal case does not necessarily mean that it will be easier to try. Willis chose to bring claims against 19 defendants, and she said she intended to try them together. While that decision makes some sense if you’re trying to prove the existence of a sprawling racketeering enterprise, it is also a massive logistical and legal challenge. Moreover, Trump is likely to try to move the case to federal court, which would require him to demonstrate that his actions were part of his official duties as president — a formidable task, given that he was interacting with Georgia officials in his capacity as a candidate. But if successful, it would expand the available jury pool to include more Trump-friendly areas outside Fulton County.These challenges — especially when combined with Trump’s upcoming criminal trials in Washington, D.C.; Manhattan; and Florida — make it difficult to see how Willis can bring this case to trial within the six months that she has said is her preference.For eight long years, Americans have watched Donald Trump lie. Those lies have been morally indefensible, but some may also be legally actionable. His campaigns and presidency may have been where the truth went to die. But the law lives, and the law declares that Trump cannot lie to Georgia public officials within the scope of their official duties. If Willis can prove that he and his confederates did exactly that, then she will prevail in the broadest, most consequential prosecution in modern American political history.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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      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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      DeSantis Wants to ‘Remove’ Trials From D.C. Legal Experts Say It’s a Non-Starter.

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      Legal experts say that an idea floated by Gov. Ron DeSantis of Florida about transferring criminal cases out of Washington, D.C., is a flawed concept.Mr. DeSantis made the unusual suggestion in the moments after his rival, former President Donald J. Trump, was indicted on Tuesday for trying to overturn the 2020 election, writing on Twitter that “we need to enact reforms so that Americans have the right to remove cases from Washington, D.C. to their home districts.” (Both men call Florida home.)“It’s going to be hard to square with the Constitution,” said Elizabeth Earle Beske, an associate law professor at American University in Washington, D.C.Several scholars and lawyers noted that the Constitution says that trials “shall be held in the state where the said crimes shall have been committed.” The federal rules of criminal procedure further specify that the proceedings be held in the district of the alleged offense.Defendants can already seek a change of venue for their cases under the current law, the experts pointed out, but the bar is high: They must demonstrate to the court that they cannot otherwise obtain a fair and impartial trial.Mr. DeSantis, in echoing Mr. Trump’s “swamp” pejorative for Washington, seemed to suggest that his rival could not get a fair trial in the nation’s capital. Bryan Griffin, a campaign spokesman for Mr. DeSantis who went to Harvard Law School and previously practiced law, said in an email that the governor’s idea for moving cases had merit.“Congress can certainly change the rules of criminal procedure to allow defendants to change venues out of D.C. for politically charged cases,” he said.But that premise was challenged by David B. Rivkin Jr., who served in the White House Counsel’s Office and the Department of Justice during the Reagan and George H.W. Bush administrations and practices appellate and constitutional law in Washington.“I think it’s extremely unfortunate to characterize the D.C. jury pool in this fashion,” he said. “Whatever you think about the U.S. government, the notion that means that people who live in the district can be accused of being part of the swamp, to me, is neither fair nor appropriate.”Arthur Hellman, a law professor emeritus at the University of Pittsburgh, suggested that Mr. DeSantis had “not thought that through completely.”“Criminal venue was so important to the framers,” of the Constitution, he said. More

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      It’s No Surprise That Donald Trump Is Being Charged Under a Reconstruction-Era Law

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      Of the four charges included in the latest federal indictment of Donald Trump, one — violating Section 241 of Title 18 of the United States Code — seemed to surprise many. It shouldn’t have.That statute dates back to Reconstruction, as Congress responded to the Confederacy’s white-power insurrection against the United States. Reconstruction sought not only to restore the Union after the Civil War, but also to build guardrails against such an authoritarian faction ever again being able to subvert the Republic.It’s therefore appropriate that Section 241 and other Reconstruction-era laws are precisely those that the American legal system is turning to in response to a former president who stoked the flames of an insurrection in which a violent mob stormed the Capitol in an effort to undermine the democratic process. One of the rioters, later sentenced to three years in prison, carried a Confederate flag into the Capitol, an indelible image captured in photographs and widely circulated.Congress enacted Section 241 as part of the Civil Rights Act of 1870 (also known as the Enforcement Act for its role in enforcing the terms of the 13th, 14th and 15th Amendments, crucial to providing Black people with the rights and protections of citizenship). The law addressed the rise of white supremacist groups after the Civil War, especially the Ku Klux Klan, which organized citizens and public officials to intimidate freed Black people to suppress their participation in the political process. It empowered federal agents to stop these conspirators from depriving any Americans, in particular Black Americans, of the right to have a say in their government.The Justice Department has charged Mr. Trump with doing exactly that: the government asserts in its detailed 45-page indictment that through his attempts “to overturn the legitimate results of the 2020 presidential election,” Mr. Trump conspired to “injure, oppress, threaten and intimidate” voters in exercising their “right to vote, and to have one’s vote counted.”Bringing civil rights charges against the former president is not overreach by the Justice Department, as some have suggested. By enforcing the Civil Rights Act of 1870, the department is doing the very thing the law was designed to do by prosecuting a political leader who, while in office and after, sought to cancel the votes of millions to hold power.In 1871, with Klan violence continuing, Congress passed two more bills to enforce the 13th, 14th and 15th Amendments, known as the Ku Klux Klan acts. Among other things, these laws empowered citizens to sue anyone who conspired to intimidate or retaliate against them for exercising their political rights.Armed with these laws, the Justice Department oversaw the arrest and conviction of hundreds of Klansmen, and by 1873 the group had been effectively (though temporarily) crushed. While Section 241 has regularly been used ever since to police civil rights violations, with the end of Reconstruction in 1877, Klan Act litigation brought by private parties declined precipitously, according to our research, until in recent years.In July 2017, our organization, Protect Democracy, filed a Klan Act lawsuit against the 2016 Trump campaign over what we asserted was its role in Russian efforts to compromise the political rights of Americans. While that suit did not succeed, it was the beginning of a spate of private Klan Act litigation unseen in more than 100 years.Several lawsuits have been filed by our group and others. Among the results: A restraining order was issued against armed groups that surrounded ballot drop boxes in ways that intimidated voters; the Proud Boys were ordered to pay more than $1 million in damages for desecrating the property of a Black church; and a jury ordered 17 white nationalist leaders and organizations to pay more than $26 million in damages to nine people who suffered physical or emotional injuries at the Charlottesville Unite the Right rally in 2017. Still pending are lawsuits seeking damages against those responsible for Jan. 6, against those who organized a car caravan that threatened to drive a campaign bus off the highway and against Mr. Trump and others for seeking to deprive Black voters from having their votes counted in the 2020 election.Other Reconstruction-era laws are also in the center of debates today. Congress recently reformed the Electoral Count Act, passed in response to the contested presidential election of 1876, after Mr. Trump and his allies sought to use the law’s ambiguities to overturn the 2020 election. The former president has also pledged, if re-elected, to abolish the 14th Amendment’s guarantee of birthright citizenship. That guarantee was ratified in 1868 to reverse the Supreme Court’s Dred Scott decision holding that African Americans were not citizens.Yet another 14th Amendment provision, Section 3’s prohibition on those who have engaged in insurrection against the United States from holding power again, was recently applied for the first time since Reconstruction to bar from office a New Mexico county commissioner who breached the barricades outside the Capitol on Jan. 6. And recently, our organization filed a voting rights lawsuit under the 1870 law that readmitted Virginia to the Union. The Virginia Readmission Act limited the circumstances in which the state could disenfranchise its citizens, and our lawsuit argues that the state’s lifetime ban on voting by anyone convicted of any felony violates that law.These battles are the newest iterations of the Reconstruction-era clashes. Just as the integration of freed Black people into our democracy in the 1870s was met with fierce resistance, so too did the election of the nation’s first Black president give rise to a revival of open bigotry. And just as the enactment of laws in the 1870s to enforce equal citizenship were met with intransigence, so too today should we expect to see their enforcement resisted.The outcome of these legal clashes will determine the future of the country’s experiment in self-government. Either these laws will finally be fully realized and usher in a true multiracial democracy or the 150-year resistance to Reconstruction will prevail and white Americans reluctant to share power will reinforce their dominance over a diversifying nation. Authoritarianism rather than democracy would then be the order of the day.Ian Bassin is a co-founder and the executive director of the group Protect Democracy and a former associate White House counsel. Kristy Parker is counsel at Protect Democracy and the former deputy chief of the criminal section of the Justice Department’s Civil Rights Division.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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      The Trial America Needs

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      At last. The federal criminal justice system is going to legal war against one of the most dishonest, malicious and damaging conspiracies in the history of the United States. Tuesday’s indictment of Donald Trump, brought by the special counsel Jack Smith’s office, is the culmination of a comprehensive effort to bring justice to those who attempted to overthrow the results of an American presidential election.In the weeks after the 2020 election, the legal system was in a defensive crouch, repelling an onslaught of patently frivolous claims designed to reverse the election results. In the months and years since the violent insurrection on Jan. 6, 2021, the legal system has switched from defense to offense. With all deliberate speed, prosecutors first brought charges against Trump’s foot soldiers, the men and women who breached the Capitol. Next, prosecutors pursued the organizers of Trumpist right-wing militias, the Proud Boys and Oath Keepers, who had engaged in a seditious conspiracy to keep Trump in the White House.And now, Smith is pursuing Trump himself — along with six yet unnamed co-conspirators — alleging criminal schemes that reached the highest level of American government. This is the case that, if successful, can once and for all strip Trump of any pretense of good faith or good will. But make no mistake, the outcome of this case is uncertain for exactly the reason it’s so important: So very much of the case depends on Trump’s state of mind.At the risk of oversimplifying an indictment that contains four distinct counts — conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding and conspiracy against rights — it can be broken down into two indispensable components. First, it will be necessary to prove what Trump knew. Second, it will be necessary to prove what he did. Let’s take, for example, the first count of the indictment: 18 U.S.C. Section 371, conspiracy to defraud the United States. The statute is designed to criminalize any interference or obstruction of a “lawful governmental function” by “deceit, craft or trickery.”There’s little doubt that Trump conspired to interfere with or obstruct the transfer of power after the 2020 election. But to prevail in the case, the government has to prove that he possessed an intent to defraud or to make false statements. In other words, if you were to urge a government official to overturn election results based on a good faith belief that serious fraud had altered the results, you would not be violating the law. Instead, you’d be exercising your First Amendment rights.The indictment itself recognizes the constitutional issues in play. In Paragraph 3, the prosecutors correctly state that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.”Thus, it becomes all-important for the prosecution to prove, beyond a reasonable doubt, that Trump knew he lost. Arguably the most important allegations in the indictment detail the many times that senior administration officials — from the vice president to the director of national intelligence to senior members of the Justice Department to senior White House lawyers — told him that there was no fraud or foreign interference sufficient to change the results of the election. That’s why it’s vitally important for the prosecution to cite, for example, the moment when Trump himself purportedly described one of his accused co-conspirators’ election fraud claims as “crazy.”The strong constitutional protection for efforts to influence or persuade the government makes the intent element inescapable, no matter the count in the indictment. While there are certainly nuances in the other counts regarding the precise form of proof necessary to establish criminal intent, the fact remains that the prosecution will have to utterly demolish the idea that Trump possessed a good-faith belief that he had won the election.But that’s precisely why this case is so important — more important than any previous Trump indictment. If the prosecution prevails, it will only be because it presented proof beyond a reasonable doubt that the election fraud claims that a substantial percentage of Americans still believe to be true were not only false but were also known to be false when they were made.I am not naïve. I know that not even a guilty verdict will change the perceptions of many of Trump’s most loyal supporters. As my Times colleague Nate Cohn wrote on Monday, “The MAGA base doesn’t support Mr. Trump in spite of his flaws. It supports him because it doesn’t seem to believe he has flaws.” The perceptions of these supporters may never change. They may remain loyal to Trump as long as they live.At the same time, however, a successful federal trial would strip Trump’s defenders of key talking points — that his voter fraud and vote manipulation claims have never been fully tested, that the House Jan. 6 committee was nothing but a one-sided show trial and that a proper cross-examination would expose the weakness of the government’s claims. Trump will have his opportunity to challenge the government’s case. His lawyers will have the ability to cross-examine opposing witnesses. We will see his best defense, and a jury will decide whether the prosecution prevails.The case is no slam dunk. I agree with the Politico Magazine columnist and former prosecutor Renato Mariotti, who stated that it is “not as strong” as the federal documents case against Trump. But that’s because the Mar-a-Lago documents case is exceptionally strong and clear. A former Trump administration attorney, Ty Cobb, has described the evidence as “overwhelming.” The facts appear to be uncomplicated. By contrast, the facts underlying this new indictment are anything but simple. And Trump possesses legal defenses — such as challenging the scope and applicability of the relevant statutes — that he won’t have in his federal trial for withholding documents.Yet if a prosecutor believes — as Smith appears to — that he can prove Trump knew his claims were false and then engineered a series of schemes to cajole, coerce, deceive and defraud in order to preserve his place in the White House, it would be a travesty of justice not to file charges.Consider some of the claims in the case. Paragraph 66 of the indictment says that Trump directed “fraudulent electors” to convene “sham proceedings” to cast “fraudulent electoral ballots” in his favor. Paragraph 31, quoting audio recordings, claims that Trump told the Georgia secretary of state that he needed to “find” 11,780 votes and said that the secretary of state and his counsel faced a “big risk” of criminal prosecution if they (as the special counsel describes it) “failed to find election fraud as he demanded.”This is but the tip of the iceberg of the wrongdoing Trump is accused of. But those two claims alone — even leaving aside the events of Jan. 6 and the host of other Trump efforts to overturn the election — merit bringing charges.Millions of Americans believe today that Joe Biden stole the presidency. They believe a series of demonstrable, provable lies, and their belief in those lies is shaking their faith in our republic and, by extension, risking the very existence of our democracy. There is no sure way to shake their convictions, especially if they are convinced that Trump is the innocent victim of a dark and malign deep state. But the judicial system can expose his claims to exacting scrutiny, and that scrutiny has the potential to change those minds that are open to the truth.Smith has brought a difficult case. But it’s a necessary case. Foot soldiers of the Trump movement are in prison. Its allied militia leaders are facing justice. And now the architect of our national chaos will face his day in court. This is the trial America needs.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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      The Secret History of Gun Rights

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      Shannon Lin, Lynsea Garrison and Marion Lozano, Elisheba Ittoop and Listen and follow The DailyApple Podcasts | Spotify | Stitcher | Amazon MusicHow did the National Rifle Association, America’s most influential gun-rights group, amass its power?A New York Times investigation has revealed the secret history of how a fusty club of sportsmen became a lobbying juggernaut that would compel elected officials’ allegiance, derail legislation behind the scenes, and redefine the legal landscape.Mike McIntire, an investigative reporter for The Times, sets out the story of the N.R.A.’s transformation — and the unseen role that members of Congress played in designing the group’s strategies.On today’s episodeMike McIntire, an investigative reporter for The New York Times.National Rifle Association members take their seats for the Leadership Forum at the NRA Convention in the Indianapolis Convention Center.Kaiti Sullivan for The New York TimesBackground readingOver decades, a small group of legislators led by a prominent Democrat pushed the gun lobby to help transform the law, the courts and views on the Second Amendment.The potential Republican 2024 presidential candidates showed strong support for gun owners’ rights — a core issue for the party’s base, but one that can be a tougher sell in a general election.There are a lot of ways to listen to The Daily. Here’s how.We aim to make transcripts available the next workday after an episode’s publication. You can find them at the top of the page.Mike McIntire More

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      Our Immigration System: ‘A Waste of Talent’

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      More from our inbox:Cruelty at the BorderLimiting the President’s Pardon PowersAre A.I. Weapons Next?U.S. Food Policy Causes Poor Food ChoicesMateo Miño, left, in the church in Queens where he experienced a severe anxiety attack two days after arriving in New York.Christopher Lee for The New York TimesTo the Editor:“As Politicians Cry Crisis, Migrants Get a Toehold” (news article, July 15) points up the irrationality of the U.S. immigration system. As this article shows, migrants are eager to work, and they are filling significant gaps in fields such as construction and food delivery, but there are still great unmet needs for home health aides and nursing assistants.The main reason for this disjunction lies in federal immigration law, which offers no dedicated visa slots for these occupations (as it does for professionals and even for seasonal agricultural and resort workers) because they are considered “unskilled.”Instead, the law stipulates, applicants must demonstrate that they are “performing work for which qualified workers are not available in the United States” — clearly a daunting task for individual migrants.As a result, many do end up working in fields like home health care but without documentation and are thus vulnerable to exploitation if not deportation. With appropriate reforms, our system would be capable of meeting both the country’s needs for essential workers and migrants’ needs for safe havens.Sonya MichelSilver Spring, Md.The writer is professor emerita of history and women’s and gender studies at the University of Maryland, College Park.To the Editor:We have refugee doctors and nurses who are driving taxi cabs. What a waste of talent that is needed in so many areas of our country.Why isn’t there a program to use their knowledge and skills by working with medical associations to qualify them, especially if they agree to work in parts of the country that have a shortage of doctors and nurses? It would be a win-win situation.There are probably other professions where similar ideas would work.David AlbendaNew YorkCruelty at the BorderTexas Department of Public Safety troopers look over the Rio Grande, as migrants walk by.Suzanne Cordeiro/Agence France-Presse — Getty ImagesTo the Editor:Re “Officers Voice Concerns Over Aggressive Tactics at the Border in Texas” (news article, July 20):In the past year, I have done immigration-related legal work in New York City with recently arrived asylum seekers from all over the world: Venezuela, China, Honduras, Guatemala, Ecuador and Ghana. Most entered the U.S. on foot through the southern border. Some spent weeks traversing the perilous Darién Gap — an unforgiving jungle — and all are fleeing from horribly violent and scary situations.Texas’ barbed wire is not going to stop them.I am struck by the message of the mayor of Eagle Pass, Rolando Salinas Jr., who, supportive of legal migration and orderly law enforcement, said, “What I am against is the use of tactics that hurt people.” I desperately hope we can all agree about this.There should be no place for immigration enforcement tactics that deliberately and seriously injure people.I was disturbed to read that Texas is hiding razor wire in dark water and deploying floating razor wire-wrapped “barrel traps.” These products of Gov. Greg Abbott’s xenophobia are cruel to a staggering degree.Noa Gutow-EllisNew YorkThe writer is a law school intern at the Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law.Limiting the President’s Pardon Powers Tom Brenner for The New York TimesTo the Editor:Re “U.S. Alleges Push at Trump’s Club to Erase Footage” (front page, July 28) and “Sudden Obstacle Delays Plea Deal for Biden’s Son” (front page, July 27):With Donald Trump campaigning to return to the White House while under felony indictment, and with Hunter Biden’s legal saga unresolved, there should be bipartisan incentive in Congress for proposing a constitutional amendment limiting the president’s pardon power.A proposed amendment should provide that the president’s “reprieves and pardons” power under Article II, Section 2, shall not apply to offenses, whether committed in office or out, by the president himself or herself; the vice president and cabinet-level officers; any person whose unlawful conduct was solicited by or intended to benefit any of these officials; or a close family member of any of these individuals.Stephen A. SilverSan FranciscoThe writer is a lawyer.To the Editor:Beyond asking “Where’s my Roy Cohn?” Donald Trump may now ask, “Where’s my Rose Mary Woods?”David SchubertCranford, N.J.Are A.I. Weapons Next? Andreas Emil LundTo the Editor:Re “Our Oppenheimer Moment: The Creation of A.I. Weapons,” by Alexander C. Karp (Opinion guest essay, July 30):Mr. Karp argues that to protect our way of life, we must integrate artificial intelligence into weapons systems, citing our atomic might as precedent. However, nuclear weapons are sophisticated and difficult to produce. A.I. capabilities are software, leaving them vulnerable to theft, cyberhacking and data poisoning by adversaries.The risk of proliferation beyond leading militaries was appreciated by the United States and the Soviet Union when banning bioweapons, and the same applies to A.I. It also carries an unacceptable risk of conflict escalation, illustrated in our recent film “Artificial Escalation.”J. Robert Oppenheimer’s legacy offers a different lesson when it comes to advanced general-purpose A.I. systems. The nuclear arms race has haunted our world with annihilation for 78 years. It was luck that spared us. That race ebbed only as leaders came to understand that such a war would destroy humanity.The same is true now. To survive, we must recognize that the reckless pursuit and weaponization of inscrutable, probably uncontrollable advanced A.I. is not a winnable one. It is a suicide race.Anthony AguirreSanta Cruz, Calif.The writer is the executive director and a co-founder of the Future of Life Institute.U.S. Food Policy Causes Poor Food Choices Steven May/AlamyTo the Editor:Re “Vegans Make Smaller Mark on the Planet Than Others” (news article, July 22):While I agree that people could help reduce greenhouse-gas emissions by eating plants only, I find it crucial to note that food policy is the main reason for poor food choices.Food choices follow food policy, and U.S. food policy is focused on meat, dairy, fish and eggs. Our massive network of agriculture universities run “animal science” programs, providing billions of dollars’ worth of training, public relations, research, experimentation and sales for animal products.Our government provides subsidies to the meat, dairy, fish and egg industries far beyond what fruits, vegetables and other plant foods receive. Federal and state agriculture officials are typically connected to the meat or dairy industry. The public pays the cost of animal factories’ contamination of water and soil, and of widespread illness linked to eating animals since humans are natural herbivores.No wonder the meat, dairy, fish and egg industries have so much money for advertising, marketing and public relations, keeping humans deceived about their biological nature and what is good for them to eat.David CantorGlenside, Pa.The writer is founder and director of Responsible Policies for Animals. More