Sue Ogrocki/AP Photo
Republican presidential candidate and former President Donald Trump leaves an Erie, Pennsylvania, campaign rally, July 29, 2023.
“Innocent until proven guilty” is a bedrock of our legal system, but it’s hard to apply in a criminal case where everyone saw the defendant engage in the activities, most of them on television or social media. The indictment of Donald Trump for a conspiracy to attempt to overturn the 2020 election has few surprises (though co-conspirator Jeffrey Clark casually remarking that Trump could use the Insurrection Act to put down riots actually had the rare power to shock), because of course there were few surprises. There was a limited series produced about all this called the January 6th Commission. People involved in the case have to be impartial; the rest of us can assess what we’ve already seen.
That’s why official Republican engines are spinning like a top, with objections and theories and even dark warnings that this prosecution is a mistake or even a catastrophe. But these counterpoints are also familiar. They are trotted out every time someone with a modicum of power in America gets into trouble.
Trump’s legal defenses, as laid out by Semafor, are pretty weak, in my opinion. First, they claim that you cannot criminalize free speech, even as special counsel Jack Smith took pains to say in the complaint that Trump could contest the election in court and even lie about it if he wanted to. It was acting on the lies to definitively work to change the outcome that was actionable. It’s not free speech to engineer the creation of fake electors to be used to confuse the vote count and subvert the popular will, or to tell the Justice Department to “just say that the election was corrupt and leave the rest to me and the Republican congressmen.”
Then there’s the idea that Trump honestly believed in election fraud, and therefore had no intent to deceive. This gets into George Costanza “it’s not a lie if you believe it” territory. At some point, when you are told dozens if not hundreds of times that there was no fraud, and you continue to say there was, your claim to innocence goes away. The legal concept is “willful blindness,” and nothing more perfectly encapsulates Trump. And even without that, the moment when Trump is discussing a national-security issue and says, “We’re going to give that to the next guy,” or when he tells his vice president, “You’re too honest,” does indicate a recognition that he lost and is lying about it.
Another notion, that the conspiracy was never going to work, is a curious one that suggests we can only prosecute fraud schemes in this country if they’re successful. I again appeal to pop culture with Sideshow Bob’s lament: “Attempted murder. Now honestly what is that? Can you win a Nobel Prize for attempted chemistry?”
But the most pernicious defense of Trump is one the Wall Street Journal editorial board, not really Trump’s biggest fan, highlighted: the idea that it’s actually dangerous to indict a former president. There’s a somewhat legal version of this, involving a president’s “absolute immunity from damages liability predicated on his official acts,” though devising a fake elector scheme doesn’t seem all that official. But then there’s the version intended for public consumption, which says that prosecuting a sitting president only makes them stronger and destroys our democracy. It’s the blowback defense.
Not only is this an example of self-perpetuating immunity, a theory to inoculate presidents ever since Nixon said it. But it is also how every wealthy and powerful person warns America when confronted with accountability for their conduct. “Punish me and actually you will be punished,” the concept goes.
After the financial crisis, any attempt to make bank CEOs responsible for torching the U.S. economy amid a mountain of improper mortgage originations and false documents was met with the retort that it would chill mortgage lending, harm the poor family who just wants a house. Access to credit, in this sense, was deemed more important than whether the credit is legitimate.
That version of the blowback defense is essentially a capital strike, that any effort to prosecute crimes will cause a John Galt–like withdrawal from the economic system. My consistent response to that was (1) OK, go away then, we’ll manage with the honest businesspeople; and (2) this tips over the line of a defense and into that of a threat. That’s the same threat Trump and his allies are making and it’s not veiled. If you use the legal system to prosecute crimes perpetrated by a president, we will be forced to commit more crimes, and it will be your fault.
In past years, this was enough to call off Gerald Ford, who pardoned Nixon, and Barack Obama, who vowed to “look forward as opposed to looking backwards” at the actions of George W. Bush. It’s been enough to cause Washington’s opinion leaders to wobble before, and maybe again.
But if anyone thought this non-aggression pact would bring us a higher caliber of president, I invite them to read the Smith indictment. Worrying about the consequences of prosecuting crimes against democracy has not led to fewer crimes against democracy. Ending automatic impunity is the bare minimum to expect of a country that professes to follow the rule of law.
