Do Trump’s Indictment Defenses Stand a Chance?
Elections & Politics Policy Brief #89 | By: Arvind Salem | August 15, 2023
Photo taken from: theday.com
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Off the heels of a superseding indictment adding more charges to his classified documents case, President Donald Trump faces a third indictment: this time related to his attempts to overturn the 2020 election.
On August 1st, President Trump was indicted on four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy to disenfranchise voters. The indictment specifically acknowledges that Trump had the right to speak about the election results and challenge them through lawful means, but argues that Trump’s actions were outside the bounds of legal conduct and amounted to a criminal conspiracy.
The specific actions that the prosecution, led by Jack Smith, argues were illegal include pressuring state officials to change results to disenfranchise millions of voters, assembling a state of fraudulent electors to change the electoral vote count, trying to weaponize the Department of Justice to conduct fake investigations to falsely claim that there was voter fraud, pressuring Mike Pence to change the outcome of the election, and lying to his supporters to get them to storm the Capitol and obstruct the proceedings.
The indictment also mentions six co-conspirators but leaves them unnamed. However, matching outside information with the descriptions in the indictment have allowed five of them to be identified: former Trump attorneys Rudy Giuliani, John Eastman and Sidney Powell, Justice Department official Jeffrey Clark and pro-Trump lawyer Kenneth Chesebro who orchestrated the fake electors plot. The sixth co-conspirator, who the indictment states is a political consultant, is unknown.
Policy Analysis
The biggest question in any Trump indictment is what is the likelihood that Trump is found guilty and goes to prison. To answer this question, it is necessary to look at Trump’s likely legal defense and the circumstances surrounding the trial.
Trump has three main legal defenses. The first, and most obvious defense, is that Trump had the right to say whatever he wanted to about the election being stolen under the first amendment. While this is true, the first amendment does not protect coercing state officials to overturn election results, using fraud to recruit fake electors, or using the executive branch (the Justice Department and Vice President) to stay in power. The only question here is if the prosecution has enough evidence to prove that Trump did all of these things.
The second defense is that he did not explicitly order Mike Pence to overturn the election results, but he asked him in an aspiration sense (rather than ordering him). The distinction is that asking is protected under the first amendment whereas ordering in this situation would be illegal. To counter this defense, the prosecution could simply call Mike Pence to testify regarding how he understood Trump’s request (whether it was aspirational or an order). Additionally, Trump has other instances where he has ordered people to help him overturn the election such as his infamous quote where he pressured officials in Georgia to “find” him more votes.
The third defense is that Trump sincerely believed that the election was stolen from him. Trump’s lawyers argue that since he was acting on something he sincerely believed in, there was no criminal intent. However, prosecutors may not need to prove that Trump was insincere in his claims to prove criminal intent, but merely prove that Trump knew he was using illegal means. The prosecution could also attach the very premise that Trump thought the election was stolen by focusing on all the instances where his advisors, lawyers, intelligence agencies, the courts, and the Department of Justice all told him that there was no election fraud.
Another complication for Trump arises from the Judge overseeing the case: Tanya Chutkan. Judge Chutkan is known for being extremely harsh to January 6th rioters and called for the people who lied to them to be charged. In one sentencing hearing in 2021 she said, “You have made a very good point that the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged.” Out of the 31 January 6th defendants that have come before her, she has sentenced every single one to prison time, and is the judge most likely to go beyond punishments requested by the prosecution. Trump’s legal team has made it a priority to move the trial outside of Washington D.C., due to its Democrat leanings, to a state that leans Republican such as West Virginia. If such a motion is successful, it would also mean that Judge Chutkan would not be on the case. However it is worth noting that none of more than a dozen similar motions by riot defendants have succeeded due to the constitutional principle that defendants should be tried wherever the crime allegedly occurred.
Engagement Resources
Winred allows people to donate money to Republican candidates to support their campaign. Readers interested in supporting President Trump or other members of the Republican party may find that this is a useful way to convey their support and help the Republican cause.
The Brennan Center for Justice at NYU Law School is an organization that promotes reforms to the American democracy and argues against many practices today such as gerrymandering and mass incarceration. Readers who are concerned about the health of democracy in light of this indictment may wish to support the Brennan Center and help it advance its proposed reforms.
Act for America is an organization that seeks to educate and mobilize Americans against foreign and domestic threats, and advocates for bills to achieve these aims. Those who feel that this indictment constitutes a breakdown of justice may wish to support this organization.
ActBlue allows people to donate to a host of Democratic organizations, candidates, and causes. Readers are likely to find organizations that are supporting the Trump indictment on this site and may wish to donate money to further that cause.