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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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      Can Liberalism Save Itself?

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      Liberalism is under siege. It is not just a problem for America’s Democratic Party, which once again may face either losing an election to Donald Trump or claiming victory with a bare majority. Around the world, the entire outlook of political liberalism — with its commitments to limited government, personal freedom and the rule of law — is widely seen to be in trouble.It wasn’t long ago that liberals were proclaiming the “end of history” after their Cold War victory. But for years liberalism has felt perpetually on the brink: challenged by the rise of an authoritarian China, the success of far-right populists and a sense of blockage and stagnation.Why do liberals find themselves in this position so routinely? Because they haven’t left the Cold War behind. It was in that era when liberals reinvented their ideology, which traces its roots to the Enlightenment and the French Revolution — and reinvented it for the worse. Cold War liberalism was preoccupied by the continuity of liberal government and the management of threats that might disrupt it, the same preoccupations liberals have today. To save themselves, they need to undo the Cold War mistakes that led them to their current impasse and rediscover the emancipatory potential in their creed.Before the Cold War, President Franklin Roosevelt had demanded the renovation of liberalism in response to the Great Depression, emphasizing that economic turmoil was at the root of tyranny’s appeal. His administration capped more than a century in which liberalism had been promising to unshackle humanity after millenniums of hierarchy — dismantling feudal structures, creating greater opportunities for economic and social mobility (at least for men) and breaking down barriers based on religion and tradition, even if all of these achievements were haunted by racial disparities. At its most visionary, liberalism implied that government’s duty was to help people overcome oppression for the sake of a better future.Yet just a few years later, Cold War liberalism emerged as a rejection of the optimism that flourished before the mid-20th century’s crises. Having witnessed the agonizing destruction of Germany’s brief interwar experiment with democracy, liberals saw their Communist ally in that battle against fascism converted into a fearful enemy. They responded by reconceptualizing liberalism. Philosophers like the Oxford don Isaiah Berlin emphasized the concept of individual liberty, which was defined as the absence of interference, especially from the state. Gone was the belief that freedom is guaranteed by institutions that empower humanity. Instead of committing to make freedom more credible to more people — for example, by promising a bright future of their own — these liberals prioritized a fight against mortal enemies who might crash the system.This was a liberalism of fear, as another Cold War liberal intellectual, the Harvard professor Judith Shklar, said. In a way, fear was understandable: Liberalism had enemies. In the late 1940s, the Communists took over China, while Eastern Europe fell behind an Iron Curtain. But reorienting liberalism toward the preservation of liberty incurred its own risks. Anyone hostage to fear is likely to exaggerate how dangerous his foes actually are, to overreact to the looming threat they pose and to forsake better choices than fighting. (Ask Robert Oppenheimer, who signed up to beat the Nazis only to see paranoia spoil the country he volunteered to save.)During the Cold War, concern for liberty from tyranny and self-defense against enemies sometimes led not just to the loss of the very freedom liberals were supposed to care about at home, it also prompted violent reigns of terror abroad as liberals backed authoritarians or went to war in the name of fighting Communism. Millions died in the killing fields of this brutal global conflict, many of them at the hands of America and its proxies fighting in the name of “freedom.”Frustratingly, the Soviet Union was making the kinds of promises about freedom and progress that liberals once thought belonged to them. After all, in the 19th century liberals had overthrown aristocrats and kings and promised a world of freedom and equality in their stead. Liberals like the French politician and traveler Alexis de Tocqueville, though concerned about possible excesses of government, imagined democracy as a form of politics that offered startling new opportunities for equal citizenship. And while such liberals placed too much faith in markets both to emancipate and to equalize, they eventually struggled to correct this mistake. Liberals like the English philosopher John Stuart Mill helped invent socialism, too.The Cold War changed all that. It wasn’t just that socialism became a liberal swear word for decades (at least before Senator Bernie Sanders helped revive it). Liberals concluded that the ideological passions that led millions around the world to Communism meant that they should refrain from promising emancipation themselves. “We must be aware of the dangers which lie in our most generous wishes,” the Columbia professor and Cold War liberal Lionel Trilling explained.The Cold War transformation of liberalism wouldn’t matter so profoundly now if liberals had seized the opportunity to rethink their creed in 1989. The haze of their geopolitical triumph made it easy to disregard their own mistakes, in spite of the long-run consequences in our time. Instead, liberals doubled down. After several decades of endless wars against successor enemies and an increasingly “free” economy at home and around the world, American liberals have been shocked by blowback. History didn’t end; in fact, many of liberalism’s beneficiaries in backsliding new democracies and in the United States now find it wanting.A great referendum on liberalism kicked off in 2016, after Mr. Trump’s blindsiding election victory. In books like Patrick Deneen’s best-selling “Why Liberalism Failed,” there was an up-or-down vote on the liberalism of the entire modern age, which Mr. Deneen traced back centuries. In frantic self-defense, liberals responded by invoking abstractions: “freedom,” “democracy” and “truth,” to which the sole alternative is tyranny, while distracting from their own errors and what it would take to correct them. Both sides failed to recognize that, like all traditions, liberalism is not take it or leave it. The very fact that liberals transformed it so radically during the Cold War means that it can be transformed again; liberals can revive their philosophy’s promises only by recommitting to its earlier impulses.Is that likely? Under President Biden’s watch, China and Eastern Europe — the same places where events shocked Cold War liberals into their stance in the first place — have attracted a Cold War posture. Under Mr. Biden, as under Mr. Trump before him, the rhetoric out of Washington increasingly treats China as a civilizational threat. Meanwhile, Vladimir Putin’s illegal invasion of Ukraine has once again made Eastern Europe a site of struggle between the forces of freedom and the forces of repression. Some like to claim that the war in Ukraine has reminded liberals of their true purpose.But look closer to home and that seems more dubious. Mr. Trump is the likely 2024 Republican presidential nominee (if not the potential winner of the election). Yet liberals seem to be betting their success less on a positive vision for America’s future and more on the ability of courts to protect the nation. Even if one of Mr. Trump’s many prosecutors manages to convict him, this will not rescue American liberalism. The challenge cuts deeper than eliminating the current enemy in the name of our democracy if it is not reimagined.Since his election in 2020, Mr. Biden has been championed by some pundits — and by his administration itself — as the second coming of Franklin Roosevelt. But Roosevelt warned that “too many of those who prate about saving democracy are really only interested in saving things as they were. Democracy should concern itself also with things as they ought to be.”Mr. Biden, despite an ambitious agenda of so-called supply-side liberalism, doesn’t seem to have internalized the message. And for their part, voters do not yet seem fully convinced. A liberalism that survives must resonate with voters who want something to believe in. And liberalism once had it, revolving not around fear of enemies but hope in institutions that lead to what Mill called “experiments in living.” He meant that people everywhere would get the chance from society to choose something new to try in their short time. If their hands are forced — especially by a coercive and unequal economic system — they will lose what is most important, which is the chance to make themselves and the world more interesting.If there is any silver lining in the next phase of American politics, which Mr. Trump continues to define, it is that it provides yet another opportunity for liberals to reinvent themselves. If they double down instead on a stale Cold War ideology, as they did after 1989 and 2016, they will miss it. Only a liberalism that finally makes good on some of its promises of freedom and equality is likely to survive and thrive.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.Samuel Moyn is a professor at Yale and the author of the forthcoming book “Liberalism Against Itself: Cold War Intellectuals and the Making of Our Times.” More

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      The Trump-Free Debate That’s All About Trump

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      Donald Trump may not be on the stage for tonight’s Republican primary debate, but at least eight other candidates will still have to contend with his presence — and his lead in the polls.The Opinion columnist Michelle Goldberg argues that tonight is an opportunity for Trump’s opponents to convince Republican voters that they can be as dominant as the former president, but without the legal baggage. The question remains, though: Will the Republican base buy it?Illustration by The New York Times; Photographs by Joe Buglewicz for The New York Times; Scott Morgan, Jim Young, Dan Koeck, Cheney Orr/Reuters; Ben Gray, Alex Brandon/Associated Press; Megan Varner/Getty ImagesThe 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.This Opinion Short was produced by Sophia Alvarez Boyd. It was edited by Stephanie Joyce and Kaari Pitkin. Mixing by Carole Sabouraud. Original music by Pat McCusker and Carole Sabouraud. Fact-checking by Mary Marge Locker. Special thanks to Shannon Busta, Kristina Samulewski and Annie-Rose Strasser. 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

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      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

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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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      Today’s Top News: A New Role for Kamala Harris in the 2024 Campaign, and More

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      The New York Times Audio app is home to journalism and storytelling, and provides news, depth and serendipity. If you haven’t already, download it here — available to Times news subscribers on iOS — and sign up for our weekly newsletter.The Headlines brings you the biggest stories of the day from the Times journalists who are covering them, all in about 10 minutes. Hosted by Annie Correal, the new morning show features three top stories from reporters across the newsroom and around the world, so you always have a sense of what’s happening, even if you only have a few minutes to spare.Democrats and officials in the White House say now is a critical moment for Vice President Kamala Harris as the 2024 presidential campaign ramps up.Aileen Perilla for The New York TimesOn Today’s Episode:Kamala Harris Takes on a Forceful New Role in the 2024 Campaign, with Zolan Kanno-YoungsSigns of a Covid Uptick Across Much of the United States, with Apoorva MandavilliThe U.S. Is Eliminated From the Women’s World CupEli Cohen 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