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      The Surprising Places Where Abortion Rights Are on the Ballot, and Winning

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      IdahoN.D.S.D.TexasOkla.Mo.Ark.La.Miss.Ala.Tenn.Ky.Ind.Wis.W.Va.S.C.Ga.Ky.Kan.Mont.Mich.OhioMo.S.D.Fla.Ariz. Before Dobbs, abortion was legal in all 50 states. In the 14 months since the Supreme Court overturned Roe v. Wade, 15 states have enacted near-total bans () on abortion, and two states have imposed six-week limits (). But in the same time frame, the results of a series of ballot measures have revealed […] More

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      Special Grand Jury in Georgia Recommended Charging Lindsey Graham in Trump Case

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      A special grand jury made the recommendation last year after hearing from dozens of witnesses on whether Donald J. Trump and his allies interfered in the 2020 election.A special grand jury that investigated election interference allegations in Georgia recommended indicting a number of Trump allies who were not charged, including Senator Lindsey Graham of South Carolina, the former senators David Perdue and Kelly Loeffler of Georgia, and Michael Flynn, a former national security adviser.In its final report, which a judge unsealed on Friday, the panel also recommended charges against Boris Epshteyn, one of former President Donald J. Trump’s main lawyers, as well as a number of other Trump-aligned lawyers, including Cleta Mitchell and Lin Wood.Mr. Trump and 18 allies were charged in a racketeering indictment that was handed up last month by a regular grand jury in Fulton County, Ga.The special grand jury, which Fulton County prosecutors convened to help with the investigation, met at an Atlanta courthouse from June to December of last year. It spent much of that time hearing testimony from 75 witnesses on the question of whether Mr. Trump or any of his allies had sought to illegally overturn his 2020 election loss in the state.Under Georgia law, the panel could not issue indictments itself. In the Trump case, that task fell to a regular grand jury that was seated over the summer. The regular grand jury heard evidence from prosecutors for one day in early August before voting to indict all 19 defendants whom prosecutors had sought to charge.The special grand jury’s mandate was to write a report with recommendations on whether indictments were warranted in the investigation, which was led by Fani T. Willis, the Fulton County district attorney. Ms. Willis asked to convene a special grand jury because such panels have subpoena powers, and she was concerned that some witnesses would not cooperate without being subpoenaed.Portions of the report were publicly released in February, but those excerpts did not indicate who had been recommended for indictment, or on what charges. The release of the full nine-page report this week was ordered by Judge Robert C.I. McBurney of Fulton County Superior Court.Read the Report by the Special Grand Jury in Georgia That Investigated President TrumpThe special grand jury investigated whether Mr. Trump interfered in the 2020 election in the state. Their report included recommendations on whether indictments were warranted, and for whom.Read DocumentMr. Epshteyn declined on Friday to comment about the report. Others whom the advisory panel recommended for indictment did not immediately respond to requests for comment.After the special grand jury recommended indictments of about 40 people, the district attorney had to weigh which prosecutions would be the most likely to succeed in court. A potential case against Mr. Graham, for example, would have been hampered by the fact that there were conflicting accounts of telephone calls he made to a top Georgia official. Mr. Graham has repeatedly said that he did nothing wrong.Fulton County prosecutors indicated in court filings last year that they were interested in those calls by Mr. Graham, a onetime critic of Mr. Trump who became a staunch supporter. They were made shortly after the November 2020 election to Brad Raffensperger, Georgia’s secretary of state.Mr. Raffensperger has said that in those calls, Mr. Graham suggested the rejection of all mail-in votes from Georgia counties with high rates of questionable signatures, a step that would have excluded many more Democratic votes than Republican ones. But the phone calls are not known to have been recorded, and recollections differ about exactly what was said — factors that probably figured in the decision not to charge Mr. Graham.In a filing seeking Mr. Graham’s testimony, prosecutors said that he “questioned Secretary Raffensperger and his staff about re-examining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump,” and “made reference to allegations of widespread voter fraud” during those calls.A few weeks after the calls, Mr. Trump followed up with a call of his own to Mr. Raffensperger on Jan. 2, 2021, saying that he wanted to “find” roughly 12,000 votes, enough to reverse his loss in Georgia. Mr. Trump’s call, which was recorded, is the basis for a number of charges in the 98-page indictment.Mr. Graham has characterized as “ridiculous” the idea that he had suggested to Mr. Raffensperger that he throw out legally cast votes, and the senator’s lawyers have argued that he was carrying out a legitimate investigative function as a member of the Senate Judiciary Committee. In a bid to avoid testifying before the special grand jury last year, Mr. Graham waged a legal battle that made its way to the U.S. Supreme Court. Ultimately, he was forced to testify.Afterward, he said that he had spent two hours giving testimony behind closed doors, where he said he “answered all questions.”Mr. Graham has been critical of prosecutors in the Georgia case and the three other criminal cases against Mr. Trump, characterizing them as liberals who were “weaponizing the law” to unfairly target the former president.After the Georgia indictment, Mr. Graham told reporters in South Carolina that he was not cooperating with the Fulton County prosecutors, dismissing the idea as “crazy stuff.”“I went, had my time, and I haven’t heard from them since,” he said. More

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      The Everlasting Pain of Losing a Child

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      More from our inbox:Clarence Thomas’s EthicsPolitical NovicesDon’t Kill the LanternfliesIgnoring the Truth About Trump Karlotta FreierTo the Editor:Re “Life After Loss Is Awful. I Need to Believe It’s Also Beautiful,” by Sarah Wildman (Opinion, Aug. 27):I just read your essay, Ms. Wildman, about your daughter Orli, and I know everything you are saying and am crying with you and for you and for myself.I know what it is to look for your child everywhere, in a rainstorm, in trees and butterflies. I even looked for my son, Jack, in an exhibit of Goya paintings, seeing him in a young man of about his age and size, even though the clothes and setting were of another era.I used to pretend, as long as I could, that the person coming toward me on the trail near our house was Jack. When I hugged his friends, I’d pretend I was hugging him. Unlike you, we lost Jack suddenly, and we had him for what I think of as a third of a life, 26 years. He died skiing in an avalanche in Montana in 1999, almost as long ago as he got to live.That longing ache, the feeling of having failed him, that I should have tamped down his physical daring — I know those too. I am so sorry for your loss that nothing can make go away.We used to say: “We’ve been really good and grieved well. Can we have him back now?” I guess we were saying it to the universe.Bonnie GilliomChapel Hill, N.C.To the Editor:There is overwhelming grace and dignity to this piece and to its earlier companion in the aftermath of Sarah Wildman’s daughter’s death (“My Daughter’s Future Was Taken From Her, and From Us,” May 21).A palpable cascading sadness and grief, resting side by side with a longing to remain attached to what was beautiful in Orli’s universe and what remains so even now that she has passed. Two universes colliding, a mother trying to reconcile these impossibly irreconcilable differences.I am thankful that Ms. Wildman has allowed us into her world. That she has given us permission to see and feel what such devastating loss looks like, how it manifests itself, how to try to manage it even as it cannot be managed.There can be no greater pain, no greater loss than that of watching a child slip through one’s grasp as you try desperately to hold on. But Orli will remain forever present through the words of her mother.And though she may no longer be able to protect her daughter, Ms. Wildman has been able to preserve her and her memory. It is a mother’s last loving gift to her wonderful child.Robert S. NussbaumFort Lee, N.J.To the Editor:I have finished reading Sarah Wildman’s essays on the loss of her daughter. I too have lost a child, although he was 42 years old. I still weep at times that have no connection to losing him. He was my “baby,” and there are days when I can still feel his presence even though he died almost six years ago.Ms. Wildman’s articulation of the grief as ever-changing but everlasting was heartbreaking, but consoling as well. Just knowing that other parents have felt the soul-wrenching pain of this awful loss and continue on with their lives as I have feels like a warm hug.I don’t ever have to end this grieving of my loss. I can allow the memories I hold of him to live with me. I often want to tell family and friends that talking about my son doesn’t have to be off limits. Remembering him for the loving, sensitive and funny person he was is a way to honor and celebrate his memory.Patricia KoulepisPhoenix, Md.Clarence Thomas’s EthicsJustice Clarence Thomas had requested a 90-day extension for his financial disclosures.Erin Schaff/The New York TimesTo the Editor:Re “Thomas Defends His Private Trips With Billionaire” (front page, Sept. 1):Justice and ethics both require adherence to what is morally right. In his flagrant disregard for such principles, Justice Clarence Thomas has done irreparable harm to a once respected institution.The Supreme Court may never regain the public trust it once held, but Chief Justice John Roberts could make a small beginning by urging Justice Thomas to resign. The perks that Justice Thomas and his wife, Virginia, have already enjoyed should be enough for a lifetime.He could do a great service to history and to his own legacy by doing the just, ethical and statesmanlike thing: a graceful resignation in the interest of the court and the country.Fran Moreland JohnsSan FranciscoThe writer is an author and activist.Political NovicesWhen asked about some past comments, Vivek Ramaswamy has denied ever making them or claimed to have been misquoted, even as those denials have been refuted.Rachel Mummey for The New York TimesTo the Editor:Re “Ramaswamy’s Repeated Aversion to the Facts Mirrors Trump’s Pattern” (news article, Aug. 31):The idea has taken hold that a person with no government experience, particularly a successful businessman, can be president. You wouldn’t want a neophyte to remove your gallbladder or give you a haircut, but apparently a lot of people feel differently about picking a president.Donald Trump — with no legislative, foreign policy or executive branch experience, little knowledge of history or government, and little understanding of the powers of the president — was elected and is still wildly popular with his party.What Donald Trump taught us is that the skill and experience it takes to become president, to get the job, and the skill and experience it takes to be president, to do the job, are not the same. It isn’t that they are not exactly the same; it is that they are totally different. The Venn diagram circles, Mr. Trump has taught us, do not intersect. He has also taught us that the second skill doesn’t have to be on your résumé to get the job.At least one person, Vivek Ramaswamy, has learned this lesson. If this works, it is democracy’s Achilles’ heel.Clem BerneSouth Salem, N.Y.Don’t Kill the LanternfliesEncouraging the public to kill spotted lanternflies can help raise awareness of the problem while scientists seek a lasting solution, experts said. These lanternflies were flattened by a photographer.Ali Cherkis for The New York TimesTo the Editor:New York City’s lanternfly bloodsport is sending our children the wrong message. “Swatting and Stomping in a Lanternfly Summer” (news article, Sept. 3) encourages us to continue the killing despite its obvious futility.First, it’s absurd to think that we can control the pest population one stomp at a time. Second, you don’t have to be a follower of ahimsa (the ancient Indian principle of nonviolence) to see that encouraging our children to destroy a life is problematic, even, or especially, a small and annoying one. Third, it teaches our children that the lanternfly is the problem while ignoring the root problem: us.Humanity’s sprawling globalization, ignoring its effects on nature, created the pest by introducing it into a new environment. Perhaps a better lesson for our children would be to point out the lanternfly as an unintended consequence of human practices and to teach them to be a better steward of our planet than we were.Ari GreenbaumTeaneck, N.J.Ignoring the Truth About TrumpTo the Editor:Remember when we were kids and someone was going to say something that we didn’t want to hear? We’d stick our fingers into our ears or make a lot of noise to drown out the anticipated comment.Isn’t this essentially what Matt Gaetz and other Republicans are doing in their proposal to defund Jack Smith’s investigation of former President Donald Trump?Yeah, growing up can be hard. We often hear things we’d prefer to remain ignorant of. For some, ignorance is still bliss.Robert SelverstoneWestport, Conn. 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      Can Trump Appeal His Federal Election Trial Date? What to Know.

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      The ex-president vowed to appeal a judge’s decision to schedule the start on his trial the day before Super Tuesday. He can’t disrupt the trial that way, legal experts say — but there is a longer-shot possibility.Former President Donald J. Trump immediately vowed to challenge the March 4 start date for his criminal trial over his efforts to overturn the 2020 election, raising questions of whether or how he could try to push back the timing of the case.“I will APPEAL!” Mr. Trump wrote on social media shortly after Judge Tanya S. Chutkan issued her order on Monday.But despite complaining about the date, a lawyer for Mr. Trump, John Lauro, said in court that the defense team would abide by her decision “as we must.” Mr. Lauro had proposed the trial begin in April 2026, citing the volume of evidence defense lawyers needed to study, while prosecutors had suggested starting in January.Here is a closer look.Why is March 4 awkward?The date comes in the middle of an already crammed calendar for Mr. Trump, who faces an array of criminal cases and civil lawsuits as he seeks the 2024 Republican presidential nomination.In particular, as Mr. Trump noted, the day after the trial would begin is Super Tuesday, when voters in over a dozen states will cast their primary votes. That voting will take place amid the likelihood of negative headlines pegged to the start of the trial, and his ability to travel and hold rallies campaigning for primaries in subsequent weeks is likely to be limited.Defendants are generally required to be present at their trials. After preliminary matters like jury selection, prosecutors have estimated they will need about four to six weeks to present their case, after which defense lawyers will also have an opportunity to call additional witnesses.Are trial calendars even subject to appeal?Typically, no, but there are complexities.First, Mr. Lauro could file a motion asking Judge Chutkan to reconsider the timing and fleshing out his argument that March 4 does not give the defense enough time to adequately prepare.But if she declines to change it, decisions by a Federal District Court judge over a prospective trial calendar are not usually considered subject to an immediate appeal. Instead, if a claimed problem can be remedied by later overturning any guilty verdict, an appeal raising that issue must wait until after the trial.Indeed, if the former president is convicted, Mr. Lauro appears to be laying the groundwork for Mr. Trump to argue in an appeal after the trial that the start date violated his constitutional right to have meaningful legal representation. Mr. Lauro told the judge on Monday that the defense team would not be able to provide adequate representation to Mr. Trump if it had to be prepared by March 4. Such a trial date would deny his client the opportunity to have effective assistance of counsel, he added.But Mr. Trump has another way to ask a higher court to review the calendar before the trial starts. It is called a petition for a writ of mandamus, and while it is not technically considered to be an appeal, legal experts say, it looks very similar.What is a writ of mandamus?It is a judicial order to a lower-court judge mandating some action. It functions as a safety release valve, allowing what are essentially early appeals. It is reserved for extraordinary situations where a judge has made a mistake that will cause a defendant irreparable harm, so the normal process of waiting until after any guilty verdict to raise the issue on appeal could not provide a remedy.Thus, while Mr. Trump would normally have to wait until after the trial to ask a higher court to review Judge Chutkan’s calendar decision, his defense team could, in theory, try to short-circuit that process by filing a mandamus petition to the Court of Appeals for the District of Columbia Circuit — or even directly to the Supreme Court.Is it easy to win such an order?No. In general, a mandamus petition is very likely to be denied, legal experts say. Higher courts, reluctant to disrupt the ordinary judicial process, have set a steep bar before they agree to intervene this way.In a 1999 ruling, for example, the D.C. Circuit said it would not even consider a mandamus petition based on an argument that the trial judge had made a clearly wrong decision since the problem could be addressed later through an ordinary appeal.“As we have seen, any error — even a clear one — could be corrected on appeal without irreparable harm,” the judges wrote.In a 2004 ruling, the Supreme Court said the right to relief must be “clear and indisputable” and there must be no other adequate means to obtain it. And even then, it said, a higher court still has discretion to decline issuing such an order if it nevertheless believes that intervening would not be “appropriate under the circumstances.”Does Trump have grounds for a mandamus petition?By itself, the objection raised by Mr. Lauro — that March 4 will not give Mr. Trump’s lawyers adequate time to prepare — would almost certainly fall short as a reason for a higher court to intervene early, according to Paul F. Rothstein, a Georgetown University law professor and specialist in criminal procedure.But Professor Rothstein said it was harder to predict what would happen if Mr. Trump’s team also raised an objection the former president has made in his public comments: that the trial date interferes with the election. There is a stronger argument for a claim of irreparable harm since various primaries will be over by the time of a verdict.Still, there is scant precedent to guide a higher court’s decision about whether a trial date’s effect on an election is sufficient to consider intervening early. And even if so, he said, it is also uncertain where the higher court might land on whether the public interest is better served by delaying a trial or by letting it go forward so voters can know about a major candidate’s criminality as soon as possible.“Like so many things with these unprecedented questions that the Trump cases present, the law does not have a definite answer,” Prof. Rothstein said. 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      What Fani Willis Got Wrong in Her Trump Indictment

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      By assembling a sprawling, 19-defendant RICO indictment with 41 counts, District Attorney Fani Willis of Fulton County has brought the sort of charging instrument that has typically led to monthslong trials, complicated appeals and exhaustion for the participating attorneys. Now, as some co-defendants seek federal removal while others demand speedy trials in state court, we are starting to see the costs of complexity.In federal and state cases, Donald Trump’s legal game plan has always been the same: delay often and everywhere with the goal of winning the 2024 election and hoping the charges go away. Special Counsel Jack Smith’s election interference indictment — just four counts brought solely against Mr. Trump — makes that difficult. On Monday, the judge set the trial for March 4, 2024.By contrast, the Georgia indictment is a sprawling account of a conspiracy among the former president, his closest advisers and state and local Republican officials to change the outcome of the 2020 Georgia election through an escalating series of falsehoods. For many, it is a satisfying political document. But as a legal instrument, its ambitious scope will provide the co-defendants with many opportunities for delay, appeals, and constitutional challenges.And even though Fulton might very will win in the end, a simpler, more direct approach would likely lead to a better result, faster, here’s why.Much of the Georgia indictment is about how Mr. Trump and others tried to get public officials to do implausible things to hand him the election — things like asking state senators to appoint an alternate slate of electors, calling a special session of the General Assembly or asking the secretary of state to “find” the votes Mr. Trump needed to win.The state chose to charge this conduct in two ways. One of them is strong and simple: Team Trump lied to elected officials and tried to forge documents.The other — that they were aware of the officials’ oaths of office and were hoping specifically to get them to violate it — is unusual and hard to prove.Solicitation requires you to ask someone else to commit a felony intentionally. In this case, the oath of office the defendants were being asked to violate was a promise to follow the Constitution and do what’s best for their constituents. It is indeed a crime in Georgia for a public officer to “willfully and intentionally” violate the terms of his oath.Here’s the problem: It’s hard enough to prove that Mr. Trump’s request violates the Constitution, since the Constitution allows states to figure out how to select electors. But then the state must also prove that Mr. Trump knew this would violate the electors’ oath of office.It seems possible that Mr. Trump had no idea what these officials’ oath of office was, maybe even no idea that they swore an oath at all. Under Georgia’s “mistake of fact” affirmative defense, if Mr. Trump has some evidence that he was operating under a “misapprehension of fact” that would justify his actions, the state must disprove it beyond a reasonable doubt.There are a few reasons this could be a strong defense. First, Mr. Trump surrounded himself with individuals who told him what he was doing was legal. Georgia does not normally have an “advice of counsel” defense, but in this context it seems relevant that people he apparently trusted were not telling him this would violate any oath of office.And to put it gently, Mr. Trump is plausibly ignorant on a variety of subjects, ranging from how hurricanes are formed to whether it’s a good idea to use or inject disinfectants as a possible Covid cure. Even if prosecutors can meet the burden of showing that what he requested was unconstitutional — not necessarily an easy thing to establish with a jury of non-lawyers — it may be difficult to prove that Donald Trump knew, or cared, what the Constitution had to say on the subject.Then there’s the Hawaii precedent. Mr. Trump’s advisers were relying on an incident from the 1960 presidential election, when Richard Nixon looked as though he had won the state of Hawaii by a few dozen votes. But the results were so uncertain that three Democrats submitted their Electoral College votes just in case, and when, after a recount, it looked like John F. Kennedy was the actual winner, the Senate (headed by Nixon) unanimously agreed to the alternate slate.Even though no court ever blessed this procedure, or even held that it wasn’t criminal, Mr. Trump’s team could argue with a straight face that they believed their request was legally possible.There’s also the possibility of a First Amendment defense. Typically, people are allowed to petition the government to do things, even unconstitutional things. That a court might, down the line, find those things to be unconstitutional seems like a dangerous basis to criminalize that petitioning.I’d understand bringing these charges to get at some obviously bad and immoral conduct by the president if there were nothing else available. But there are other, much stronger charges in the same indictment without the same constitutional concerns. Take the false statement counts: The very best case that Mr. Trump and his team could cite is United States v. Alvarez, where the Supreme Court held that there is a First Amendment right to lie about having received the Medal of Honor. But the Supreme Court also specifically said that this protection vanishes when lying for material gain, or to the government.Rudy Giuliani told state legislators that election workers were passing around flash drives like “vials of heroin” and that thousands of dead and felonious voters participated, but he can’t claim those statements have constitutional protection. All Mr. Giuliani can do is show the court what evidence supported those statements. There is none. And what’s more, Mr. Giuliani recently admitted in a civil filing that his claims against two Fulton County election workers had been false. Despite claiming that it was for “this litigation only,” that’s an admission.Similarly, the forgery charges simply need to establish a conspiracy to create fake elector votes that could potentially be counted on Jan. 6. It’s irrelevant whether the parties thought it was legal to do this, so long as they knew they were not, in fact, the duly appointed electors.So it is an odd legal choice to drag a jury through weak, disputed counts in a monthslong trial when you could just focus on the counts that are hard to challenge and easy to explain, saving weeks in the process. The RICO count will already require dozens of witnesses and some complicated instructions, so tossing in these oath of office charges seems like a recipe for confusion and delay.And it’s not just the charges that complicate things, but the sheer number of defendants. A judge granted one co-defendant, Ken Chesebro, a speedy trial, which will require Fulton County to bring this case to trial by Nov. 3 or acquit him as a matter of law. (Sidney Powell has also requested a speedy trial.)Ms. Willis reacted by requesting an October date for the entire case, but at least for the moment, a judge has declined her request. This puts the prosecutors in a bind. Mr. Chesebro’s trial would give Mr. Trump a useful preview of the entire case, from voir dire to closing arguments, which could weaken the effectiveness of Ms. Willis’s prosecution of Mr. Trump and the other defendants. It would allow Mr. Trump’s lawyers to dig into witness testimony and perhaps encourage Georgia Republicans to step in.Additionally, it might be very difficult for Fulton County to actually grant these parties the speedy trial they’ve requested. There is some Georgia authority to suggest that a trial does not “begin” under the statutory speedy trial act until a jury is empaneled and sworn. What happens if Fulton County needs a month, or two months, to actually select the jury that will be sworn?And for all the talk of potentially flipping co-defendants, many of the people in this case don’t have all that much criminal exposure. With no mandatory minimums for prison time and no criminal history, many of the participants could reasonably expect probation, and maybe even a first-offender sentence that would not count as a felony. A simpler case, with fewer co-defendants, would go more swiftly, with less legal uncertainty.As a general, George Washington was known for unworkable battle plans. Where an ordinary commander might send all his troops to one location at one time, Washington would split them into three columns, expecting them to arrive all at one spot with precision timing. It rarely worked out. Despite those mistakes, he’s now best known for winning.For all the potential problems with this indictment, I would still expect Ms. Willis to secure a conviction against Mr. Trump on one or more counts if this case goes to trial as it intends.But there are a dozen ways that things can go sideways, and it is very possible that history will remember the two years that Fulton County took to bring these charges as a wasted opportunity to make a simpler case.Andrew Fleischman is an attorney at Sessions & Fleischman in Atlanta.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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      How Free Speech and Willful Blindness Will Play Out in the Trump Prosecution

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      More than a decade ago, a divided Supreme Court ruled in United States v. Alvarez that an elected member of a district water board in California could not be prosecuted criminally for lying to an audience about winning the Medal of Honor. The court ruled that efforts to criminalize mere lying, without linking the lie to an attempt to gain a material advantage, posed an unacceptable threat to robust exercise of First Amendment rights.Given that decision, Jack Smith, the special prosecutor investigating former President Donald Trump, was right in concluding that Mr. Trump has a First Amendment right to lie to the general public.So, where’s the legal beef in the indictment arising from the events that culminated in the storming of the Capitol brought by Mr. Smith against Mr. Trump? It’s in the fact that Mr. Smith isn’t merely charging the former president with lying; he is contending that Mr. Trump lied to gain an unlawful benefit — a second term in office after voters showed him the exit. That kind of speech-related behavior falls comfortably within what the justices call “categorical exceptions” to the First Amendment like true threats, incitements, obscenity, depictions of child sexual abuse, fighting words, libel, fraud and speech incident to criminal conduct.As the court put it in 1949 in the case of Giboney v. Empire Storage and Ice Co., “it rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.”That is why Mr. Smith will most likely seek to prove that the former president was engaged in “speech incident to criminal conduct” when he and his co-conspirators lied to state legislators, state election officials, gullible supporters, Justice Department lawyers and Vice President Mike Pence in an illegal effort to prevent Joe Biden from succeeding him as president. Since Mr. Trump is charged with, among other crimes, conspiracy to defraud the United States and to deprive people of the right to have their votes counted, Mr. Smith would clearly be right in arguing that the Alvarez decision doesn’t apply.Characterizing Mr. Trump’s words as “speech incident to criminal conduct” would neatly solve Mr. Smith’s First Amendment problem, but at a substantial cost to the prosecution. To win a conviction, the government must persuade 12 jurors to peer inside Mr. Trump’s head and find beyond a reasonable doubt that he knew he was lying when he claimed to be the winner of the 2020 election. If Mr. Trump actually believed his false assertions, his speech was not “incident to criminal conduct.”How can Mr. Smith persuade 12 jurors that no reasonable doubt exists that Mr. Trump knew he was lying? The prosecution will, no doubt, barrage the jury with reams of testimony showing that the former president was repeatedly told by every reputable adviser and administration official that no credible evidence of widespread electoral fraud existed, and that Mr. Pence had no choice but to certify Mr. Biden as the winner.But there also will likely be evidence that fervent supporters of Mr. Trump’s efforts fed his narcissism with bizarre false tales of result-changing electoral fraud, and frivolous legal theories justifying interference with Mr. Biden’s certification as president-elect. Those supporters could include Rudy Giuliani; Sidney Powell, a lawyer and purveyor of wild conspiracy theories; Jeffrey Clark, the acting head of the Justice Department’s civil division, who apparently plotted with Mr. Trump to unseat the acting attorney general and take control of the department; and John Eastman, the lawyer who hatched the plan that Mr. Pence refused to follow to keep Mr. Trump in power.Maybe Mr. Trump himself will swear to his good faith belief that he won. With all that conflicting testimony, how is a conscientious juror to decide for sure what was really going on inside his head?The answer lies in the Supreme Court’s doctrine of “willful blindness.” A dozen years ago, in the case of Global-Tech Appliances v. SEB, Justice Samuel Alito, writing for all but one justice, ruled that proof of willful blindness is the legal equivalent of proving guilty knowledge.As Justice Alito explained it: “Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.”In other words, when a defendant, like Mr. Trump, is on notice of the potential likelihood of an inconvenient fact (Mr. Biden’s legitimate victory), and closes his eyes to overwhelming evidence of that fact, the “willfully blind” defendant is just as guilty as if he actually knew the fact. While this argument is not a slam dunk, there’s an excellent chance that 12 jurors will find, beyond a reasonable doubt, that Mr. Trump hid from the truth by adopting willful blindness.Burt Neuborne is a professor emeritus at New York University Law School, where he was the founding legal director of the Brennan Center for Justice. He was the national legal director of the American Civil Liberties Union from 1981 to 1986.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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      ‘I Don’t Think Trump Will Be the Nominee’: Three Writers on the First G.O.P. Debate

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      Frank Bruni, a contributing Opinion writer, hosted an online conversation with Ann Coulter, who writes the Substack newsletter Unsafe, and Stuart Stevens, a former Republican political consultant, to discuss their expectations for the first Republican debate and the future of American politics.Frank Bruni: Stuart, I’ve done many of these political roundtables, but never one at a juncture this titanically and transcendentally bizarre. The first Republican debate of the presidential election season is tonight, the party front-runner is absent, and he’s running, oh, infinity points ahead of his Republican rivals despite two impeachments, 91 felony counts and unquantifiable wretchedness. Color me morose.But also, illuminate me: Given Donald Trump’s lead and its durability, does this debate matter, and how? Is there an argument that it could change the trajectory of this contest?Stuart Stevens: If a candidate enters the debate with a strategy of taking out another candidate, it can change a trajectory. In the 2012 primary, Mitt Romney did this to Rick Perry in their first debate and again in a subsequent debate to Newt Gingrich. (I was the campaign strategist for that Romney campaign.) But you must go into a debate with the attitude “one of us will walk off this stage alive.” I don’t think anyone has the nerve to do that.Ann Coulter: I think this is Ron DeSantis’s to lose. If he’d just ignore the media and be the nerd that he is, he’ll do great.Bruni: Stuart, do you agree that DeSantis has an underappreciated strength and that there’s really a path for him to this nomination? And other than DeSantis, is there anyone on that stage tonight who could have a breakout moment and matter in this nomination contest?Stevens: DeSantis is Jeb Bush without the charm. He is a small man running for a big job and looking smaller every day. If I were advising Tim Scott or another candidate, I’d advise them to use the debate to attack DeSantis and blow him up. This is a man who lost a debate to Charlie Crist.Coulter: I’m sorry, but this just shows that you have zero understanding of the country, much less the party. Also, famous last words, but: I don’t think Trump will be the nominee, but you’d really do the country a solid if you could get Democrats to stop indicting him.Bruni: Ann, in just a few sentences, why won’t Trump be the nominee? That’s a renegade perspective. (Or, given recent Republican political history, should I say maverick?) Convince me.Coulter: Trump can barely speak English. He’s a gigantic baby. The only reason he crushed in 2016 is because of immigration — the wall, deport illegal immigrants, the travel ban (which imposed limits on travel from several predominantly Muslim countries). That is DeSantis this time — without the total lack of interest in carrying it out.Bruni: OK, but before we move on, is there anyone else in this debate who could break out and matter?Coulter: No.Bruni: Stuart, do you too believe Trump will not or might not get the nomination, as Ann does?Stevens: Trump is what the Republican Party wants to be. He’s a white grievance candidate in a party that is over 80 percent white and has embraced its victimhood. Chris Christie and Asa Hutchinson are alternatives, but there isn’t a winning market for an anti-Trump message. Trump will be the nominee.Coulter: I think you’re both more focused on personalities and whiteness than the voters are. It’s issues. And on the issues, Christie is totally out of step with the G.O.P. — and I’d say the country. He weeps about Ukrainians killed and raped by Russians, but doesn’t seem to give two figs about Americans killed and raped by illegal immigrants in our country.Bruni: Fair point about personalities, Ann, so let’s indeed turn to issues and larger dynamics. You’ve identified Ukraine as an issue getting too much attention. What else is getting lots of attention but largely irrelevant to this race’s outcome, and what’s hugely relevant and being overlooked?Stevens: It is actually all about race. Eighty-five percent of the Trump coalition in 2020 was white non-Hispanic in a country that is about 60 percent non-Hispanic white, and less since we’ve been chatting. The efforts in 2020 to deny votes was focused in places like Atlanta and Philadelphia. Why? That’s where a lot of Black people voted.Coulter: So you think the G.O.P. is racist. Wow, never heard that before.Stevens: In 1956, Eisenhower got about 39 percent of the Black vote. In 2020 Trump got 8 percent. A majority of Americans 15 years and younger are nonwhite or Hispanic white. This is what terrifies Republicans.Coulter: This is just your excuse for your candidate losing a winnable election in 2012.Bruni: You and Stuart are both hugely down on Trump as a human and as a candidate. Do you think he loses to Biden despite Biden’s age and low approval ratings, or is this a jump ball if Trump gets the nomination?Coulter: If Trump gets the nomination, I say he will lose. I know it, you know it, the American people know it (to paraphrase Bob Dole).Stevens: Trump could win. In 2020, he lost by a combined 44,000 votes in Georgia, Arizona and Wisconsin. Otherwise, he would still be president. Biden needs to win by 4.5 percent to carry the Electoral College. So it is inevitable it will be close.Coulter: Nah. OK, maybe. I think Trump loses, but who knows? He’s not the Trump he was in 2016 — it’s the same old thing over and over and over again. “Shifty Schiff,” “perfect phone call,” “we won BIG,” strong, strongly, strong — zzzzzzzzzzzzzzzzzzzz.Bruni: There’s sustained chatter that someone significant — Virginia Gov. Glenn Youngkin, Georgia Gov. Brian Kemp — could join and upend the Republican field at a late moment, presented as a savior. Do you foresee that? How would it play out?Stevens: There is this need among some in the donor Republican class and the National Review types that the Republican Party can revert to being a normal party. That’s insane. Take Glenn Youngkin. He endorsed Kari Lake for her Arizona gubernatorial run. Youngkin didn’t change her, she changed him.Coulter: I hope it doesn’t come to that because DeSantis is head and shoulders above every other G.O.P. presidential candidate (or politician) on the three most important issues: immigration, crime and the Covid response. Unless the prime minister of Sweden is running in this race, no one beats DeSantis on the Covid response. That’s the 3 a.m. phone call — every state and world leader faced the exact same unseen-before virus. Only those two got it exactly right.Bruni: Ann, I have to ask you this simply because your pom-poms for DeSantis are so large and exuberantly shaken. How are you comfortable with how negative, vengeful, naming-of-enemies, slaying-of-enemies his whole shtick and strategy are? Dear God, you are the biggest Reagan lover I know, and there’s no “It’s Morning Again in America” from the Florida governor. It’s the darkest night, all the time.Coulter: So glad you asked that. As I describe in my book “In Trump We Trust” — about the greatest presidential campaign in history (followed by the most disappointing, wasted presidency in history) — this “I’m optimistic!” talking point that campaign consultants feed their candidates is absurd. Ronald Reagan was not optimistic in 1980 — it was only after four years in office that it was “Morning in America.” He was not “positive” or “optimistic” in 1980 at all.It’s nauseating to see candidates try to pull off the “I’m optimistic” nonsense — which I promise you they will in the debate, especially Tim Scott.Bruni: Well, I’m not optimistic, for what that’s worth.Coulter: Yes, Frank — you’re like most voters! That’s why the “I’m optimistic” idiocy falls so flat.Stevens: Republican donors looked at a model for Republican success as a big-state governor: Reagan, George W. Bush and Romney won the nomination. But all of those candidates were optimistic, expansive candidates. DeSantis is an angry little man who can’t articulate why he wants to be president. He got in a fight with the Happiness Company, Disney, and lost. He created a private police force at a cost of over $1 million to go after voter fraud in his own state, which he had claimed had a perfect election. They arrested 20 people — and convicted just one.Bruni: I still prefer candidates who, I don’t know, tell us to try to find the good in, and common cause with, one another rather than identify whom to hate and how much. I’m old-fashioned that way. To return to the debate: Is there any chance Trump is hurt by his decision to skip it? Or is he showing considerable smarts? By choosing tomorrow to turn himself in in Georgia, he will compete with and shorten the media’s post-mortems on the debate. He will, in his signature manner, yank the spotlight back toward … himself!Coulter: The only reason Trump will “stay in the news” is that the media keep him there. The weird obsession liberals have with Trump is driving normal people away from the news. Even I, MSNBC’s most loyal viewer, cannot watch it anymore. The same words, same arguments, same info, same topics for over two years now! “We almost lost our democracy!”Trump is a bore. Please stop covering him.Bruni: Let’s do a lightning round. Fast and quick answers. If something happened soon and Biden couldn’t or didn’t run, which nationally known Democrat would be the party’s fiercest presidential candidate, assuming that candidate had just enough runway to take off, and in a few phrases or one sentence, why?Stevens: Gavin Newsom. He’s a skilled politician who can build the coalition it takes to win. It’s not a bad exercise to ask, “Could this candidate win X state as governor?” Newsom is someone you could see as governor of Pennsylvania, Wisconsin, Michigan, Arizona, Nevada, Ohio.Coulter: No one the Democrats would ever nominate — for example, Connecticut Gov. Ned Lamont, Colorado Gov. Jared Polis, possibly Ohio Senator Sherrod Brown.Bruni: Why?Coulter: Because they’re all white men.Bruni: Is the widespread belief that Kamala Harris negatively impacts Biden’s prospects for re-election overstated or understated?Stevens: Overstated. Has anybody actually looked at her record as a candidate? She’s won big, tough races. Until her presidential bid, she never lost.Coulter: Understated. I heard a discussion on MSNBC yesterday about how she’s fantastic one-on-one, a laugh riot, a charm offensive. That just doesn’t come out when she’s in front of a crowd, you see.The last person they tried that with was Al Gore, who apparently reached comedic highs alone in his bathtub.Bruni: Should Clarence Thomas be impeached?Stevens: Is that a rhetorical question? A Supreme Court justice who acts like an oligarch’s girlfriend, flying around on special vacations. Of course. He’s a disgrace.Coulter: No, he should be made czar of our country. For decades, liberals were mostly OK with the Supreme Court as it was inventing rights like abortion or Miranda or throwing out the death penalty. But now, suddenly there’s a major ethics issue about a justice who’s gotten the left’s goat since he was nominated.Thomas votes and writes opinions exactly as his judicial philosophy would predict. The idea that he ruled a certain way because someone took him on a fishing trip is ludicrous.Bruni: Lastly, rank these American institutions in the order of influence they might have over the final results — the winner — of the 2024 presidential contest: Fox News, Facebook, The New York Times, the Supreme Court.Coulter: Fox News: almost zero, unless the nominee is Trump — then you can blame Fox. Facebook: 2 percent. New York Times: 8 percent, maybe 10. The political economist Tim Grosseclose wrote a book (“Left Turn: How Liberal Media Bias Distorts the American Mind”) estimating the influence of the media on elections and concluded it was about 8 percent. But that was roughly 10 years ago. It’s probably more now. The Supreme Court: hopefully zero.Stevens: The Supreme Court by far. In the history of the country, only five justices were confirmed by senators representing a minority of the country’s population. All five are on the court today. It is completely out of step with the majority of the country, and the results played out in 2022.I don’t think Fox created the Republican Party; the Republican Party created Fox. For the most part, Fox didn’t support John McCain, didn’t support Romney, didn’t support Trump in his nomination campaign. They couldn’t affect the outcomes with their own base.Facebook has the potential to impact the race, as it did in 2016.I don’t think The Times has played a major role in a presidential campaign, and I think that’s a good thing — it’s not their job to play a major role.Bruni: Thank you both for your time, your insights and your energy.Coulter: Thank you, Frank, thank you, Stuart.Stevens: Thanks, all!Source photograph by Mark Wallheiser/Getty.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.Frank Bruni is a professor of journalism and public policy at Duke University, the author of the book “The Beauty of Dusk” and a contributing Opinion writer. He writes a weekly email newsletter. Instagram • @FrankBruni • FacebookAnn Coulter is the author of the Substack newsletter Unsafe.Stuart Stevens (@stuartpstevens), a former Republican political consultant who has worked on many campaigns for federal and state office, including the presidential campaigns of Mitt Romney and George W. Bush, is the author of the forthcoming book “The Conspiracy to End America: Five Ways My Old Party Is Driving Our Democracy to Autocracy.” More

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      With the Latest Trump Indictment, Mind These Lessons From the South

      by

      With her sweeping indictment of former President Donald Trump and over a dozen co-conspirators, the Fulton County, Ga., district attorney Fani Willis is now set to prosecute her case in a court of law. Just as important, it is essential that she and others continue to explain to the American public why the decision serves a critical purpose beyond the courts and for the health of our constitutional order.The indictment should be situated in the broader arc of American political development, particularly in the South. That history justifies using the criminal justice system to protect the democratic process in Georgia — a critical swing state — for elections now and in the future.We have the benefit of hindsight to heed the great lesson of the Reconstruction era and the period of redemption that followed: When authoritarians attack democracy and lawbreakers are allowed to walk away from those attacks with impunity, they will try again, believing there are no repercussions.We should not make those mistakes again.The period after the American Civil War entrenched many of America’s political ills. Ex-confederates were welcomed back into the body politic without meaningful penance. There were vanishingly few arrests, trials and lengthy punishments. Suffering minimal political disabilities, they could muster enough power to “redeem” Southern governments from biracial coalitions that had considerable sway to remake the South.Examples of democratic decay were regrettably abundant. An early sign occurred in Louisiana. With a multiracial electorate, Reconstruction Louisiana held great promise. During contentious state elections in 1872, Louisiana Democrats intimidated Black voters from casting ballots and corruptly claimed victory. The disputed election spurred political violence to assert white supremacy, including the Colfax Massacre in 1873, where as many as 150 Black citizens were killed in Grant Parish when a white mob sought to take control of the local government.Federal prosecutors brought charges against a number of the perpetrators. But in 1876, the Supreme Court held in United States v. Cruikshank that the federal government could not prosecute private violence under the 14th Amendment because it could only protect citizens against constitutional rights violations by state actors. By its decision, the court gave license to mobs to disrupt the peaceful transition of power with grave consequences.South Carolina could have been a Reconstruction success story. Its state constitution and government reflected the values and priorities of its Black majority. The planter elite attacked the Reconstruction government as a socialist rabble and baselessly mocked elected officials as incompetent. In the lead-up to elections in 1876, political violence brewed across the state, and Democrats secured a narrow victory. But democratic decay was precipitous. Over time, South Carolina imposed new limits on voting, moving precincts into white neighborhoods and creating a confusing system. Legislators passed the Eight Box Law, which required voters to submit a separate ballot for each elected office in a different box and invalidated any votes submitted in the wrong box. This created a barrier to voting for people who could not read.The lack of repercussions for political violence and voter suppression did little to curb the impulse to crush biracial democracy by mob rule. The backsliding spread like cancer to Mississippi, Virginia and North Carolina.In Georgia, just before the state was initially readmitted to the Union, Georgians elected a Republican to the governorship and a Republican majority to the state senate. Yet the promise of a strong Republican showing was a mirage. Conservative Republicans and Democrats joined forces to expel more than two dozen Black legislators from the Georgia General Assembly in September 1868. From there, tensions only grew. Political violence erupted throughout the state as elections drew closer that fall, most tragically in Camilla, where white supremacists killed about a dozen Black Georgians at a Republican political rally.The democratic failures of that era shared three common attributes. The political process was neither free nor fair, as citizens were prevented from voting and lawful votes were discounted. The Southern Redeemers refused to recognize their opponents as legitimate electoral players. And conservatives abandoned the rule of law, engaging in intimidation and political violence to extinguish the power of multiracial political coalitions.At bottom, the theory behind the Fulton County indictment accuses Mr. Trump and his allies of some of these same offenses.The phone call between Mr. Trump and the Georgia secretary of state Brad Raffensperger (“Fellas, I need 11,000 votes,” Mr. Trump demanded) is crucial evidence backing for a charge relating to soliciting a public officer to violate his oath of office. Mr. Trump’s coercive tactics persisted even though he should have known that Joe Biden fairly won the state’s Electoral College votes. But facts never seemed to matter. Mr. Trump’s false allegation of a rigged contest — a claim he and others made well before voting began — was grounded in a belief that opposition to his re-election was never legitimate.Mr. Trump and his allies could not accept that an emerging multiracial coalition of voters across the state rejected him. Election deniers focused on Atlanta, a city whose Black residents total about half the population, as the place where Georgia’s election was purportedly stolen. The dangerous mix of racial grievance and authoritarian impulses left Trump loyalists feeling justified to concoct the fake electors scheme and imploring the General Assembly to go into a special session to arbitrarily undo the will of Georgians.Political violence and intimidation are some of the most obvious symptoms of democratic decay. The charges in Fulton County are an attempt to use the criminal justice system to repudiate political violence.The sprawling case is stronger because the conspiracy to overturn Georgia’s presidential election results was replete with acts of intimidation by numerous people. Mr. Trump and Rudy Giuliani engaged in a full-scale harassment campaign against Fulton County election workers when they baselessly alleged that two individuals added fake votes to Mr. Biden’s tally. Mr. Trump threatened Mr. Raffensperger and a state employee with “a criminal offense” if they declined to join his corruption, warning them they were taking “a big risk.” A healthy democracy cannot tolerate this behavior.Democracy is not guaranteed, and democratic backsliding is never inevitable. The country avoided the worst, but the past few years have still been profoundly destabilizing for the constitutional order in ways akin to some of the nation’s darker moments.Indeed, the case by Ms. Willis can be seen as an effort to avoid darker moments in the future, especially for a critical swing state like Georgia. We should remember the words in 1871 of Georgia’s first Black congressman, Jefferson Franklin Long, who spoke out when Congress debated relaxing the requirements for restoring certain rights to ex-Confederates without meaningful contrition: “If this House removes the disabilities of disloyal men … I venture to prophesy you will again have trouble from the very same men who gave you trouble before.”His prediction proved all too accurate. It now may be up to the people of Fulton County to stop election denialism’s widening gyre.Anthony Michael Kreis is an assistant professor of law at Georgia State University, where he teaches and studies constitutional law and the history of American politics.Source photographs by Bettmann, Buyenlarge, and Corbis Historical, via Getty.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