Patterico's Pontifications


Constitutional Vanguard: Fine, I’ll Write About the Federal Trump Indictment for Trying to Steal the Election

Filed under: General — Patterico @ 5:54 pm

In case you were wondering what I have been doing with myself lately …

With impeccable timing, I have chosen the eve of the issuance of the Georgia Trump indictment to publish … a 16,000 word essay I have worked on for weeks about the last indictment.

You know, the one for stealing the election.

I have split up this newsletter into two gigantic sections. Gigantic Section Number One (8,900 words) addresses prudential arguments made by conservatives that the indictment sweeps up too much protected First Amendment activity and sets a bad precedent for the future. Here is the conclusion of my argument:

In short, the argument I have made here goes as follows: Donald Trump tried to steal a presidential election, a horrific action that would have destroyed the country if it had succeeded. While there are prudential arguments against prosecuting such activity, there are also prudential arguments against establishing a policy of never prosecuting such activity. Rather than throwing up our hands and being paralyzed with indecision, we should draw a line, and decide whether this case falls on the prosecutable part of the line. I conclude that it does.

Assuming Smith has the evidence to prove the elements of the charged crimes beyond a reasonable doubt, Trump engaged in a lot more than just protected advocacy. In addition to threatening at least one state official with prosecution if that official did not alter the vote count in Trump’s favor, Trump allegedly tried (and I believe did try) to engineer a scheme where his co-conspirators would present fake documentation to Congress as a pretext for them and/or Vice President Pence to ignore the will of the people and install Trump through a sham.

If you have a provable case, prudence requires that you bring this case, so that nothing like this ever happens again.

And here is a teaser from Gigantic Section Number Two, the 7,600-word paid section:

Is It Enough to Show Trump Deliberately Blinded Himself to the Truth?

Many people ask: but what if Trump willfully blinded himself to the truth? For example, Jack Smith describes a meeting among Trump, Pence, John Eastman, and others in which Trump tried to convince Pence to throw the election to him. Smith alleges at paragraph 92:

The Defendant deliberately excluded his White House Counsel from the meeting because the White House Counsel previously had pushed back on the Defendant’s false claims of election fraud.

Indeed, throughout the indictment, Trump is shown to be willfully ignoring any and all evidence that showed he lost. This passage from Smith’s description of the Raffensperger call is a good illustration:

When the Georgia Secretary of State then offered a link to a video that would disprove Co-Conspirator l’s claims, the Defendant responded, ” I don’t care about a link, I don’t need it. I have a much, [Georgia Secretary of State], I have a much better link.”

Is this sort of behavior relevant to show a fraudulent or corrupt intent on Trump’s part? I think it might be.

There’s a lot of law talkin’, for those who like that sort of thing.

Read it here. Subscribe here.

24 Responses to “Constitutional Vanguard: Fine, I’ll Write About the Federal Trump Indictment for Trying to Steal the Election”

  1. I really sort of wish I could have gotten this done before everyone got all caught up in the Georgia thing. But a piece takes as long as it takes.

    Patterico (f00234)

  2. Thanks for this.

    Nate (1f1d55)

  3. random thoughts…. (these are very stream of consciousness as I read.)

    So, if the question is how people would react if they feel there is cheating, how would the current Republican voters react if they won the popular vote and lost the election? The Dems have been relatively graceful about it (relatively), but at this point I feel like if Trump had won the popular vote by 7 million votes and lost the electoral college, I’m not sure that there wouldn’t have been shooting in the streets, which is absolutely UnAcceptable, and yet something that I am afraid certain posters on this blog would welcome.

    Pretending to follow an established process…fraud. I would say, that in general there are exceptions that exist in every established process. When my cousin was caught driving 80 mph the wrong way down a freeway late at night, the cop who pulled him over called his dad (also a cop) to come get him. (no, he wasn’t drunk or high, he was in a really really manic phase of his bipolar). Should they have arrested my cousin? yes. Did not arrest him break the rest of the system? No.

    There is a certain amount of not following the system that doesn’t break the system. Trump getting many extra chances to return the documents he took didn’t break the system. The Hunter Biden tax investigation being given to the wrong jurisdiction and the criminal division instead of the civil didn’t break the system.

    However, there is a point at which the exceptions become the system and that breaks the system or straight up destroys the system.

    And in Trump’s case he followed the established process and then straight up started lying about the results. He wasn’t even the mob boss in your example. He straight up said that his choice had gotten more votes, regardless that the results were right there in front of us.

    As far as his fraud is concerned, I do think to a certain extent the Republican party is itself morally (not legally) responsible. For decades they’ve been implying that the Dems are throwing votes in a ditch or printing votes to make up the difference so they can win or defrauding the elderly to get their votes. None of this has been true in the modern era, but its a perennial performance. Even here people joke about it or “joke” about it in some cases. How much is that responsible for the kind of fraud Trump attempted to perpetuate and for people’s willingness to believe him? I think it is telling how many times the R party has said the Ds were doing something or going to attempt to do a thing and some poor idiot on the R side decided that if the Ds are doing it, he’ll do it to to get back at them and then it turns out that he’s the only one doing it and gets caught. It’s almost entrapment (not legally) in a way.

    We are D@MN lucky that Pence didn’t go through with Eastman’s plans. All of us. Including (especially) the various legislators who would suddenly have needed to make a decision that would pit their ethics against their personal advancement.

    The prudential arguments: Nobody prosecuted Nixon, and maybe that was for the best. IDK, I wasn’t exactly in a place to have an opinion at the time and it’s easy to look back and make a judgement that won’t ever change anything. However, I would argue that not prosecuting Nixon did leave the impression that the President could get away with anything and that seems to be how Trump feels. Not prosecuting Trump would’ve just reinforced that idea and a Trump-like only has to succeed once in order to destroy the country, while the rest of us have to successfully resist the Trump-likes many times and there are a lot of stupid people out there. Trump’s stupid insurrection attempt also created a danger where it seems prudent to surround the Capitol with national-guards even in a case where someone in the future might be using them to intimidate the government instead of protect it. The current situation is a result of following the prudential concerns of the Nixon issues (which, again, may have been right for the time, but there are consequences to everything).

    The Criminalizing of speech- Free speech is not absolute. There is speech which is criminal. “Hey, Joe Biden’s win is a fraud. I’m sure that 12,000 or so votes for me exist in your state. If you can’t find them, maybe something will happen to you. Probably you should find them.” Did this person solicit a crime? I would say so. A crime that fails is also a crime. If you attempted to dig into the wall of the bank vault and were caught before breaking through the wall, you’d still have done a crime. Just because something is a stupid attempt at crime also doesn’t make it not crime. If someone brings a fake gun to school intending to intimidate the librarian into give them all the money from the late fees, it would still be a crime even if the librarian recognized it as an obviously fake gun and called the principal to come get the miscreant. “His crime was stupid and wasn’t going to succeed” doesn’t make it not a crime either.

    Nic (896fdf)

  4. Some brief random thoughts after reading 16k words…

    I’ve respected Amash over the years, but found myself disappointed in his tweet because he relegated it all to a “political dispute”. It was much more and much worse than that, because Trump’s acts are what were criminal, not his speech. Conspiring with two or more others to commit a crime may involve speaking to one another, but that speech is not protected.

    As for where to draw the line, mine is on the rule of law, that no man is above it. To me, it’s supremely important that there be one standard for all, which is why Trump doesn’t get a pass.

    Regarding whether Trump knew he was lying, I don’t believe Jack Smith used “knowingly” 36 times in the indictment without good reason and without good evidence. Mark Meadows has been quiet as a Prius.

    Regarding Andy McCarthy, I think you’re being charitable with “slippery”. Ken White may have been harsh, but he wasn’t wrong. His anger was righteous because he knew he was right, and that he had the law right.

    Paul Montagu (1888f5)

  5. 18 others have been indicted.

    Rip Murdock (dbaf46)

  6. Among those named in the sweeping indictment, charged under Georgia’s anti-racketeering law, are Rudy Giuliani, the former New York mayor who served as Trump’s personal attorney after the election; Trump’s former White House chief of staff Mark Meadows; and several Trump advisers, including attorneys John Eastman and Kenneth Chesebro, architects of a scheme to create slates of alternate Trump electors.

    Also indicted were two Georgia-based lawyers advocating on Trump’s behalf, Ray S. Smith II, and Robert Cheeley; a senior campaign adviser, Mike Roman, who helped plan the elector meeting; and two prominent Georgia Republicans who served as electors: former GOP chairman David Shafer and former GOP finance chairman Shawn Still.

    Several lesser known players who participated in efforts to reverse Trump’s defeat in Georgia were also indicted, including three people accused of harassing Fulton County election worker Ruby Freeman. They are Stephen Cliffgard Lee, Harrison Floyd and Trevian Kutti. The latter is a former publicist for R. Kelly and associate of Kanye West.

    A final group of individuals charged in the indictment allegedly participated in an effort to steal election-equipment data in rural Coffee County, Ga. They are former Coffee County elections supervisor Misty Hampton, former Coffee County GOP chair Cathy Latham and Georgia businessman Scott Hall.


    Rip Murdock (dbaf46)

  7. Sidney Powell was also indicted.

    Rip Murdock (dbaf46)

  8. Per the indictment, 18 persons, 41 counts.

    Paul Montagu (d52d7d)

  9. Trump was charged with 13 counts, including violating the state’s racketeering act, soliciting a public officer to violate their oath, conspiring to impersonate a public officer, conspiring to commit forgery in the first degree and conspiring to file false documents.


    Rip Murdock (dbaf46)

  10. Paul-

    Thanks for the link.

    Rip Murdock (dbaf46)

  11. Lindsey Graham is blowing a sigh of relief.

    Paul Montagu (d52d7d)

  12. Lindsey Graham Says ‘It’s Very Unfair To President Trump’ To Prosecute Him

    Sen. Lindsey Graham (R-SC) scoffed at the notion of ex-presidents being indicted and said “it’s very unfair” to prosecute former President Donald Trump.
    Graham appeared on Monday’s edition of Jesse Watters Primetime. As he spoke, a grand jury in Fulton County, Georgia was weighing whether to indict Trump over his efforts to overturn the election in the state. It would be Trump’s fourth indictment.

    “Talk to us about this case, what you know the case that the government is going to try to make, or the state of Georgia is going to try to make here,” guest host Pete Hegseth said to the senator.

    “I know that Fulton County is the most liberal county, I think, in all of Georgia,” he replied. “Between Manhattan and Fulton County, and D.C. – the most liberal jurisdictions in the country – it’s very unfair to President Trump. And shouldn’t this really be done by a statewide official? If there’s a crime against the people of Georgia, shouldn’t it be done by somebody like the attorney general?”

    As I’ve said before, if that should be the case, then Congress should pass a law immunizing ex-Presidents from prosecution. I’m sure Democrats would vote for it.

    Rip Murdock (dbaf46)

  13. Trump should do crime in more conservative places, then, Lindsey. Nobody forced him to live in Manhattan or DC or place ill considered calls to Fulton Co Georgia.

    Nic (896fdf)

  14. Maybe I’m wrong about the customary protocol here, but until there’s a thread for the Georgia indictments, wouldn’t it be cleaner to post about it on the Weekend Open Thread, leaving this one to the issues in the Constitutional Vanguard piece?

    lurker (cd7cd4)

  15. Comment on the new indictment in the new thread for it.

    Patterico (f5a1b0)

  16. But the folks on the left, to me, don’t seem to be genuinely engaging with the conservatives’ prudential arguments.

    It’s hard to do when you are victory-lapping. The Left’s opinions are almost entirely biased, and would be entirely different if it had been, say, Bill Clinton. Oh, wait, they WERE entirely different when it WAS Bill Clinton. They are not defending anything other than partisan opportunity.

    That’s not to say that they are wrong, just predictable and without cost to themselves. No integrity required.

    The conservative folks speak with some risk to themselves, and while some in the Trump camp are just as predictable, most on the Right have been reluctant to speak ill of Trump … until the transgressions overwhelmed their politics.

    Some still hold out hope, although the GA indictment is so incredibly damning that I think the number of supporters will decrease. I hope I’m not wrong.

    Kevin M (ed969f)

  17. The Vanguard article is a masterpiece. It clarifies the special prosecutor’s charges with legal analysis and practical concerns, and evaluates the legal responses of a variety of commentators. Plus it was a great read. Thank you!

    DRJ (95ee8b)

  18. I’m only about 2/3rds through Pat’s post, but it strikes me as possible that Amash’s argument is correct, as far as it goes. Trump’s assertions of fraud, both general and specific might be protected political speech, even if knowing lies. But…

    There is no way on God’s green earth that conspiring to present false Electoral College documents to the Congress of the United States is “protected political speech.”

    Now, I happen to believe that lying to the cops is protected speech (Pat disagrees, as does Congress), but I do NOT believe that doing so under oath is protected in any way. The oath matters. The false elector scheme was premeditated perjury of the highest sort. It was possibly worse than that, because not only would it have destroyed the Electoral College, it would have required a severe response to regain the people’s trust in elections. Like hanging the conspirators on the National Mall during a brief, but necessary, military defense against domestic enemies.

    So, perhaps some of those counts go away as protected speech, but the gestalt plot is criminal and well charged. The GA case is even more clear in that regard.

    Kevin M (ed969f)

  19. So, I finished and I stand by @10. I also agree with Pat’s take on the fraud statutes being one thing for fraud against individuals and another for fraud against the government. Government is not an individual and has powers reserved to it that, misused, can directly harm many individuals.

    Therefore fraudulently perverting government’s course of action needs to be dealt with differently that merely misdirecting the behavior of an individual.

    Kevin M (ed969f)

  20. Let’s say that the plot had succeeded, at least temporarily, and Congress had re-elected Trump president 26-24.

    Then large insurrections break out, including entire states threatening secession and civil war. Trump orders the military to put down the rebellion.

    What should the military have done? Would obeying the chain of command be the same as honoring their oath?

    Kevin M (ed969f)

  21. @kevin@21 Not necessarily, they swear to protect the constitution of the US from enemies both foreign and domestic, obeying the president is 3rd in line, not first. Some officers might decide that it was their duty to put down an insurrection, some might have decided that Trump was the enemy of the constitution. The joint chiefs would’ve had an interesting discussion that day.

    Nic (896fdf)

  22. So, I finished and I stand by @10 @19

    Kevin M (ed969f)

  23. Impressive piece of work, and not just because I agree with it. 🙂 Honestly, I hesitate to compliment too effusively anything that hues so closely to my own views, but it really is quite well thought out and executed.

    I also approve of your sources, e.g., my favorite blogging (mostly Tweeting nowadays) law professor, my favorite snarky former federal prosecutor, my favorite Olson who isn’t a SCOTUS litigator or cub reporter, and my favorite pundit not quite up to BuDuh’s standards.

    lurker (cd7cd4)

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