Excerpt from 8-2-223 Coffee and Covid post: https://www.coffeeandcovid.com/p/indicted-wednesday-august-2-2023?utm_source=substack&utm_medium=email
The Hill ran a tiresome story yesterday headlined, “Trump indicted on Jan. 6 charges.” On Tuesday — the day after Devon Archer testified about Joe Biden’s shady connections to a bunch of sketchy oligarchs — special counsel Jack Smith issued a horrible 45-page indictment tacking yet another criminal case onto President Trump’s mounting legal docket.
This newest indictment includes four counts, for mainly two reasons: that President Trump “conspired to defraud the United States,” and that he “conspired to interfere with the certification of the election.” Here’s how the Hill explained it:
“Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won,” the indictment states.
“These claims were false, and the Defendant knew that they were false,” it continues. “But the Defendant repeated and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”
The Hill, quoting bug-eyed reptilian Congressman Adam Schiff, all but admitted that the so-called House January 6th Committee was always intended to produce this singular result: charging Trump with J6-related crimes. The odious Schiff couldn’t wait to take the credit:
Rep. Adam Schiff (D-Calif.) on Tuesday credited the investigation, saying the indictment was “based in large part on evidence we uncovered through our work.”
Although the indictment didn’t explicitly name them or indict them (yet), it claimed Trump worked with six co-conspirators: “The Defendant enlisted co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power.” Based on comments from the indictment, people are guessing the co-conspirators include five of Trump’s attorneys: Rudi Giuliani, Sidney Powell, Jeffrey Clark, Kenneth Cheseboro, and John Eastman, plus an unidentified political consultant.
In a long series of poorly-considered Trump cases, this is one of the dumbest yet.
First, nearly all the conduct described in the four counts is speech, and not just speech, but political speech. Political speech is the most protected kind of speech under the Constitution’s First Amendment. That probably won’t stop the Obama-appointed judge from letting the case survive an inevitable motion to dismiss, but my initial take is the counts can’t survive without rewriting the Constitution.
The situation is slightly more complicated because the DOJ framed the counts as “fraud,” which is a type of speech that isn’t protectable, but that raises its own problems. Even if Trump did lie, which is debatable, lying isn’t illegal, not without something more, like being under oath, or harming someone who relied on the lie.
So the DOJ must first prove Trump lied, and then it must marry the lies to something else that can except them from First Amendment protection.
Which brings us to the DOJ’s next big problem, which is an interesting twist. A central material issue in this shiny new indictment is the truth or falsity of whether significant 2020 election fraud occurred or not. After all, the DOJ is claiming that Trump “lied” about election fraud, thereby — ironically — committing a fraud of his own.
In other words, they’re saying Trump committed fraud by alleging fraud. You can’t make this stuff up.
Now cast your mind back two years. Remember that none of Trump’s 2020 lawsuits ever got a chance to present evidence, since they were all dismissed on technical or procedural grounds. None of them got to take discovery, either.
But this time, now that he and his lawyers are defendants in a criminal case, President Trump can not only put on evidence of election fraud, but he must. And before that, he will have the right to conduct discovery under the demanding federal rules. And they’re not going to like it.
And, while I’m sure the giddy prosecutors are currently planning to just sit back and make Trump’s lawyers prove there was election fraud, the prosecutors will soon confront another unpleasant surprise related to what they must prove.
Right now, the prosecutors think proving their case will be easy and they won’t have to do much. But, as Trump’s lawyers begin to assemble evidence of election fraud — much of which was already pulled together in 2020 (but never considered by a court) — the DOJ prosecutors will start to realize at some point that they can’t just remain silent. They don’t see it yet, but they will eventually have to prove the negative; they will have to prove that election fraud didn’t happen.
They can’t just rely on “everybody knows” there wasn’t voter fraud. They can’t just wave their hands at the dismissed 2020 cases. They’ll almost certainly have to prove the absence of fraud.
And that, they cannot prove. Not only because proving a negative is incredibly difficult, but because it’s already very clear there was significant fraud, as demonstrated by sources like 2,000 mules. Plus, the more they look into whether fraud happened, the more it will hurt the government case.
Finally, of course, bringing this case two and a half years after January 6th during the middle of a presidential election campaign — against a candidate — is a total Banana Republic move. I’m expecting to see Joe Biden pop up wearing a medal-covered jacket covered any day now.
