Trump’s Indictment for Trying to Overthrow the Results of an Election He Lost Overwhelmingly
Trump lost the election by over 7 million votes, and he lost the Electoral College 306-232. He asked for recounts, and he lost the recounts by even greater margins than the initial count. He sued to invalidate the election results, and he lost over 60 lawsuits.
He is entitled to lie and to scream “I won” at the top of his voice in Times Square or in the dining room at Mar a Lago if he so chooses. That right is protected by the First Amendment freedom of speech even when he is lying. He can ask for recounts and file lawsuits; those rights are protected by the First Amendment freedom to petition the government for redress of grievances. There are legitimate procedures for him to do so, and he took them, and he lost.
He is not entitled by himself and in concert with others to take illegal actions to overturn the free and fair election results. That is what he is alleged to have done in the criminal indictment. https://int.nyt.com/data/documenttools/trump-jan-6-indictment-2020-election/1f1c76972b25c802/full.pdf This is prohibited conduct, not speech, and it is not protected by the First Amendment. For those of you in the corporate world, do you think you can file a fraudulent earnings report with the SEC and call it “Free Speech”?
· He asked Georgia Secretary of State Brad Raffensberger to find him 12,000 votes and threatened him with criminal prosecution if he refused to do so. Likewise, he asked other state’s election officials, legislators, and Governors to overturn the election results of the voters in their states and declare him the winner.
· He and his co-conspirators prepared, secured, and submitted fake sets of electors to Congress for seven states he had lost.
· He asked Vice President Pence to reject the properly certified electors in the seven states he had lost. Pence had no authority under the Constitution to do so. His job was ceremonial, simply open, count and report the certified electoral votes. Trump threatened Pence if he did not take this illegal and blatantly unconstitutional action.
· He asked persistently and he adamantly pressured his Attorney General to send letters falsely claiming election fraud had occurred in the states he had lost. Trump threatened him and his deputy with firings if they did not comply.
· He and his co-conspirators called for, promoted, organized, and orchestrated the events of January 6 by Trump supporters to obstruct the certification proceedings, overthrow the election results and prevent the counting of the Electoral College results, targeting Vice President Pence and many duly elected members of Congress with threats of bodily harm. Actual violence and a takeover of the US Capitol by his armed supporters to whom he had persistently and continually lied about the election results ensued causing five deaths and countless injuries of many police officers and a delay in the certification proceedings. He sat in his lunch room watching the events unfold on TV, rather than calling out federal law enforcement or the military to protect the US Capitol, the assembled members of Congress and their staffs; he did issue sporadic tweets of support and encouragement for his supporters until he finally told them he loved them and they should go home. Meanwhile Trump and Giuliani were working the phones to get Senators to obstruct the necessary Congressional approval of President Biden’s victory.
This was not a First Amendment Right of Assembly protest that got out of hand about the results of the Presidential election which Trump had lost. This was the culmination of an effort by Trump and his co-conspirators to obstruct and falsify the election results so that Trump could cling to Presidential power. The first President not to respect and indeed to seek to overthrow the results of a democratic election, Trump had lost and lied at every turn.
Trump is entitled to a presumption of innocence and to a fair trial before an impartial jury. He is not entitled to cherry pick his own judge, jury and venue, nor to threaten the judge, the witnesses, the prosecution, or the jurors.
Trump’s initial defense seems to be two-fold; first his unlawful conduct and all the lies were First Amendment protected free speech, and second, he believed his own lies that he had won even though everyone of his legal and campaign advisors told him he had lost, thus he lacked the requisite intent to violate the law. In other words, for purposes of the criminal trial proceedings, Trump was just a President so obsessed with securing his own “victory” that he had lost any and all sense of rational judgement and therefore could not act “with corrupt intent”, but he was instead acting in good faith to protect the Constitution and American democracy for future generations as he saw it. These do not appear to me to be winning arguments and strain the outermost bounds of credulity, but he only has to convince one out of twelve prospective jurors to prevent his conviction.
His lawyers and defendant Trump are clearly playing a game of delay betting on the chance that Trump wins the primaries and the fall 2024 election, and then as newly triumphant President Trump, he will order all federal proceedings against him to be dropped. Most of his Republican political rivals for the Presidency hoping to inherit his base of diehard support are thus self-gagged and hamstrung from criticizing his efforts to steal the election and subvert our democracy.