The Trump indictment and a few thoughts on how we got to this point

I would feel remiss if I didn’t post something about the historic indictment of Donald Trump for the January 6 conspiracy to nullify the election.

Two of the best legal commentators, Dahlia Lithwick and Mark Joseph Stern, give us a initial rundown:

The indictment of Donald J. Trump filed by special counsel Jack Smith on Tuesday is remarkable in too many ways to count. As Richard Hasen has argued, it may be the most important prosecution for American democracy that the nation has ever seen. And its outcome will inform not just the 2024 election but also the likelihood that future elections will result in the orderly, peaceful transfer of power.¹

Their column focuses on shortcomings in the legal professions this case brings to light. Of course, crooked and unscrupulous lawyers are nothing new in American history. Two words: Roy Cohn. Trump’s own political mentor:

What Cohn could, and did, get away with was the very engine of his existence. The infamous chief counsel for the red-baiting, Joseph McCarthy-chaired Senate subcommittee in the 1950s, Cohn was indicted four times from the mid-’60s to the early ’70s—for stock-swindling and obstructing justice and perjury and bribery and conspiracy and extortion and blackmail and filing false reports. And three times he was acquitted—the fourth ended in a mistrial—giving him a kind of sneering, sinister sheen of invulnerability.

… [But] Cohn did not, in the end, elude the consequences of his actions. He could not, it turned out, get away with everything forever. He was a braggart of a tax cheat, and the Internal Revenue Service closed in; he was an incorrigibly unethical attorney, and he finally was disbarred; and only six weeks after that professional disgrace, six months shy of 60 years old, Cohn was dead of AIDS.²

Trump is now facing the consequences of thinking he could get away with anything all the time. There’s no certainty at this point that he will be found guilty on any of the criminal charges. But the rule of law in this case is working as it should.

But notably, Trump’s latter-day substitutes for Roy Cohn also carried out dirty business in support of Trump. As Lithwick and Stern note:

For those who have been writing and thinking about the role of lawyers in the Trump years, this exchange is emblematic of how deeply corroded the practice of law and the profession have become. A group of attorneys grew so besotted with Trump and Trumpism that they were willing to work against the law—to break the law—in order to produce false documents, make unsubstantiated public claims, file meritless litigation, and suborn perjury, all in a desperate bid to keep Trump in power. What makes Tuesday’s indictment so remarkable is that it represents a kind of red line for the practice of law itself: a still life in what can and cannot be allowable for a practicing attorney, even in a robust marketplace of radical political speech and ideas, and even in service of a client who refuses to comprehend that the rule of law constrains the president as much as, if not more than, it enables him.

Voting rights attorney Marc Elias also takes note of the role of the lawyers indicated in the new indictment as co-conspirators:

Over and over, the indictment alleges that these lawyers enabled and carried out a criminal conspiracy against democracy in an attempt to “disenfranchise millions of voters.” Trump may have been the ringleader, but he alone could not have filed frivolous lawsuits, enticed fake electors with concocted legal theories or used the law to try to pressure the vice president. …

Indeed, one of the most striking aspects of the indictment is that it was not the political and campaign staff that were pushing the lawyers to falsely claim fraud — it was the reverse. Time and time again, the indictment includes instances where campaign and Republican state and federal employees and officials who were not lawyers are telling the attorneys there is no basis to contest or challenge the election. [my emphasis]³

The reaction of the Republican Party to Trump’s indictments has emphasized how far the party followed Trump into outright cult behavior. Roy Edroso has written a biting satire on just that topic, imagining a 2023 Trumpista view being applied to a sensational earlier case:

No one has been stronger in condemnation of Charles Manson than National Review. We have condemned his drug use, his advocacy of “free love,” and his use of rock music and half-baked philosophy (strongly influenced, we must mention, by Marx and Dr. Benjamin Spock) to lure middle-class children away from the authority of society and their parents.

But Vincent Bugliosi’s reckless prosecution of Manson for the Tate-La Bianca murders — in which Manson was not, we must remind you, directly involved — strikes at the very heart of the rule of law.⁴

So now we have the absurd situation that Trump on that January 6 openly directed a mob to go attack the US Capitol in order to block certification of Joe Biden’s valid electoral victory. He told his cult followers there:

Republicans are, Republicans are constantly fighting like a boxer with his hands tied behind his back. It's like a boxer. And we want to be so nice. We want to be so respectful of everybody, including bad people. And we're going to have to fight much harder.

And Mike Pence is going to have to come through for us, and if he doesn't, that will be a, a sad day for our country because you're sworn to uphold our Constitution.

Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we're going to walk down, and I'll be there with you, we're going to walk down, we're going to walk down.

Anyone you want, but I think right here, we're going to walk down to the Capitol, and we're going to cheer on our brave senators and congressmen and women, and we're probably not going to be cheering so much for some of them.

Because you'll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. …

And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore. …

And I say this despite all that's happened. The best is yet to come.

So we're going to, we're going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we're going to the Capitol... [my emphasis]⁵

And now the cult and its leader are claiming that the charges against him are completely politicized justice.

Some of the milestones on the road to this point:

• * The outrageous, crassly partisan and unprofessional conduct of Ken Starr as the independent counsel prosecuting the Whitewater case.⁶

• * The Supreme Court’s Bush v. Gore decision⁷ in 2000 handing the Florida Electors in the Presidential election to George W. Bush and Dick Cheney. Al Gore won the popular vote in the state, according a later, detailed study by the University of Chicago’s National Opinion Research Center. But the chance of getting such a recount in the interim between the election and the Presidential Inauguration was hampered by the Gore campaign’s cautious legal strategy⁸, from which the Republicans took the lesson that they could play hardball on vote counts and the Democrats would respond by trying to play checkers. Several now-well-known attorneys worked on the legal maneuvers of the Bush campaign in that effort: John Roberts, Amy Coney Barrett. and Brett Kavanaugh.⁹

• * The serial criminal conduct of the Bush-Cheney Administration¹⁰, especially the torture crimes¹¹.

• * The cheerful acceptance of those crimes by most of the Republican Party¹² and the stunning neglect of the major American media.

• * The Obama Administration's appalling response to Homeland Security analyst Daryl Johnson's 2009 report on the significant and growing threat from the violent far right.¹³ Democracy Now report¹⁴:

• * The irresponsible “Look Forward, Not Backwards” approach of the Obama Administration and Attorneý General Eric Holder in not pursuing criminal charges against the perpetrators of the Bush-Cheney Administration.¹⁵ That position gave Bush and Cheney what they couldn’t give themselves: a subsequent Democratic Admininstration that gave them a pass on crass, brutal criminality.

We’ll see how the legal cases against Trump play out. The prosecutions are unlikely to immediately de-radicalize the Trump cult. But they may reduce its appeal.

Charlie Pierce calls attention to the judge’s warning to defendant Trump at his latest court appearance, quoting NBC News¹⁶:

“Mr. Trump, I ask you to listen carefully to the conditions. Your most important condition of release is that you not commit a state, federal or local offense. If so, your release may be revoked. You may also face a longer sentence for having committed a crime while on release. I will next set a court date. You may also face an additional criminal charge for failure to appear in court. I want to remind you it is a crime to intimidate a witness or retaliate against anyone for providing information about your case to the prosecution, or otherwise obstruct justice. Do you understand these warnings, sir?" Trump nodded yes. [my emphasis]

We’ll soon see if the former President and his cult followers will show such restraint.

Josh Marshall has this observation about Trump’s position:

For reasons I didn’t fully appreciate until recently Trump doesn’t want to go into the election a convicted felon. He definitely doesn’t want to go into the [Republican] convention a convicted felon. (If you think the charges are a witch hunt why does a conviction matter? But it does.) Needless to say, Trump will remain free pending appeal, a process which could well stretch out past the election. For his diehard supporters, it’s just another step in the Deep State’s persecution of Trump. But voting for a convicted felon is probably more than at least a significant slice of Republican voters have the stomach for. I think he knows that.¹⁷ [my emphasis]

1. Lithwick, Dahlia & Stern, Mark Joseph (2023): Jack Smith’s Indictment of the Entire Legal Profession. Slate 08/02/2023. <https://slate.com/news-and-politics/2023/08/rudy-giuliani-co-conspirators-jack-smith-indictment.html> (Accessed: 2023-04-08).

2. Kruse, Michael (2019): The Final Lesson Donald Trump Never Learned From Roy Cohn. Politico Magazine 09/19/2019. <https://www.politico.com/magazine/story/2019/09/19/roy-cohn-donald-trump-documentary-228144/> (Accessed: 2023-04-08).

3. Elias, Marc (2023): Trump, Five Lawyers and Their Conspiracy Against Our Democracy. Democracy Docket 08/02/2023. <https://www.democracydocket.com/opinion/trump-five-lawyers-and-their-conspiracy-against-our-democracy/> (Accessed: 2023-04-08).

4. Edroso, Roy (2023): In Defense of Charles Manson: by the Editors of National Review. Roy Edroso Breaks It Down 08/03/2023. <https://edroso.substack.com/p/in-defense-of-charles-manson?utm_source=profile&utm_medium=reader2> (Accessed: 2023-04-08).

5. Naylor, Brian (2021): Read Trump's Jan. 6 Speech, A Key Part Of Impeachment Trial. NPR 02/10/2021. <https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial> (Accessed: 2023-04-08).

6. Conason, Joe & Lyons, Gene (2000): The Hunting of the President: The Ten-Year Campaign to Destroy Bill and Hillary Clinton. New York: St. Martin's Press.

7. Gregg, Gary L. II (n/d): UVA Miller Center. <https://millercenter.org/contested-presidential-elections/bush-v-gore> (Accessed: 2023-04-08).

8. Schwarz, Jon (2018): Democrats Should Remember Al Gore Won Florida in 2000 - But Lost the Presidency With A Pre-Emptive Surrender. The Intercept 10/30/2014. <https://theintercept.com/2018/11/10/democrats-should-remember-al-gore-won-florida-in-2000-but-lost-the-presidency-with-a-preemptive-surrender/> (Accessed: 2023-04-08).

9. Roberts, Diane (2020): At best, Florida has a vexed relationship with democracy. Florida Phoenix 10/30/2020. <https://floridaphoenix.com/2020/10/30/at-best-florida-has-a-vexed-relationship-with-democracy/> (Accessed: 2023-04-08).

10. Dean, John (2004): Worse Than Watergate: The Secret Presidency of GEorge W. Bush. New York & Boston: Little, Brown and Company.

11. Hersh, Seymour (2004): Chain of Command: The Road from 9/11 to Abu Ghraib. New York: HarperCollins Publishers.

12. Dean, John (2006): Conservatives Without Conscience. New York: Viking.

13. Resurgence. PBS Exploring Hate website 05/03/2022. <https://www.pbs.org/wnet/exploring-hate/video/part-3-resurgence/> (Accessed: 2023-04-08).

14. Former DHS Analyst Daryl Johnson on How He Was Silenced for Warning of Far-Right Militants. Democracy Now! YouTube channel. (Accessed: 2023-04-08).

15. Prokop, Andrew (2014): The huge new Senate report on CIA torture, explained. Vox 12/09/2014. <https://www.vox.com/2014/12/9/7339753/senate-torture-report> (Accessed: 2023-04-08).

16. Pierce, Charles (2023): Judge Moxila A. Upadhyaya Has Warned Donald Trump. Slim Chance He Listens. Esquire Politics Blog 08/04/2023. <https://www.esquire.com/news-politics/politics/a44727903/trump-arraignment-election-charges-warning-crimes/> (Accessed: 2023-04-08).

17. Marshall, Josh (2023): Bluster, Menace and Trial Calendars. TPM 08/03/2023. <https://talkingpointsmemo.com/edblog/bluster-menace-and-trial-calendars> (Accessed: 2023-04-08).