Turns Out He Did Nothing Wrong
Like a magician’s disappearing act, Trump’s attempt to take over the government and usurp the presidency from Joe Biden has vanished. In accordance with Justice Department practice never to prosecute a sitting president – an exemption nowhere found
We have been witness these last four years to how the propaganda of denial can successfully become the dominant ethos at the expense of both truth and justice. In what follows we trace the evolution of how the right-wing persuaded their millions to think of Trump as victim rather than villain. Outrage
The stunning blow against the Constitution and its democratic process January 6, 2021, was originally met with outrage from all quarters, not least from Republicans in Congress. After all, their lives had been threatened that day by a violent mob of thousands, some with murder in mind. Speaking in the House of Representatives that night, Speaker Kevin McCarthy said, “The violence, destruction, and chaos we saw earlier was unacceptable, undemocratic, and un-American. The President bears responsibility for Wednesday’s attack on Congress by mob rioters.” In the Senate, Majority Leader Mitch McConnell spoke of… “violent criminals who tried to stop Congress from doing our duty…They were provoked by the President and other powerful people, and they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government.” The nation was in a state of shock and disbelief. A columnist at the conservative Wall Street Journal wrote about Trump: Yet if that politician is advised by others that his comments are untruthful and nonetheless uses them to justify acts that undermine government ‘function,’ he is guilty of a conspiracy to defraud the country.” what insurrection?
Soon thereafter, though, Republicans shifted gears. With the realization that reminding the public about the treasonous actions of January 6 was not good for the brand, they began to downplay the criminal acts of that day. The insurrection became a “riot”; the riot became just another protest that got out of hand, and a false flag operation at that. The mob was antifa members dressed to impersonate right-wing militias; FBI implants had ginned up the violence. Two-thirds of Republicans believed (and believe to this day, without a wisp of evidence) that Trump won the 2020 election.
“[T]o call it an attempted coup is preposterous” wrote Barton Swaim, an editorial page writer at the Journal. The newspaper became a principal voice working to subvert Smith’s pursuit of justice. Swaim, writing in the fall of 2021, averred that, ”The idea that Donald Trump and his followers had any chance of overthrowing the U.S. government, or even that they aimed at that outcome, is a delusion.” Accordingly, we are delusional if we think that the aim of all the plotting – the threatening of Vice President Pence if he refused to disrupt the certification process, the 147 members of Congress who voted against the states’ Electoral College submissions, the assault on the Capitol – was the overthrow of the U.S. government. So what was the mob there for? Was their choice of January 6, which just happened to be the constitutional date for the official counting of the states’ votes for the presidency, just a coincidence? And, by the way says Swaim, it’s not an insurrection if it is unsuccessful.
“Insurrection is not the word recommended by the events of Jan. 6”, the Journal would later say, “it’s only the word the narrative framers find most delicious.”
A five-day trial by a Colorado district court determined that January 6 had been an insurrection and that according to Section 3 of the Constitution’s Fourteenth Amendment, which disallows anyone who “shall have engaged in insurrection or rebellion” from holding office, Donald Trump had to be stricken from Colorado’s ballot. The Colorado Supreme Court agreed.
Section 3 reads as being self-executing, just as the due process section in the same amendment always been self-executing. But the Supreme Court decided unanimously that a state cannot block from the ballot a candidate for federal office. While you may agree that was wise, that a patchwork of states voting this way or that would be chaotic, the court prescribed no process for exercising the insurrection clause. It voided part of the Constitution.
Republicans saw an opening: “Democrats tried to keep the presumptive Republican nominee off the ballot”. “Destroy democracy to save democracy is no longer a joke” wrote John Cochrane of the Hoover Institution. “The existence of the deep state seems to be confirmed with every outrage.” Bret Stephens, a conservative columnist at the New York Times wrote that, “[T]his style of opposition led Democrats astray. It goaded them into their own form of antidemocratic politics — using the courts to try to get Trump’s name struck from the ballot.” Except that it was only Colorado, not “Democrats”, not Cochrane’s “deep state”, and the Colorado case was brought by six Republicans.
The campaign to demonize opposition to Trump was underway. Wisconsin’s Republican Senator Ron Johnson said about Colorado’s decision, “Well, radical leftism has infiltrated every institution in this country.”
Republicans shifted blame for the Capitol attack to Speaker Nancy Pelosi, who the mob threatened to kill. She failed to call out the National Guard, which she had no authority to do and which Trump could have done. “If the Capitol Police had done their job, we would be having a different conversation today”, wrote columnist Holman Jenkins at the Journal. Their few hundred should have beaten back a few thousand in a four-hour pitched battle, that is. And that conversation would be what, that it was just a run of the mill coup d’état of no moment? sleepwalking
For Democrats, Merrick Garland will be remembered for letting almost two years go by before appointing Jack Smith as special counsel to pursue the two federal cases. Trump attorneys’ claim of immunity from prosecution for January 6 was denied by the district and appellate courts in D.C., but the Supreme Court took their appeal and did “their damnedest to clear the path for Trump to be the next president”, as we put it. With a nation wanting to know guilt or innocence before the election, the Court sat on the case until the beginning of this July, conferring not only immunity but even blocking the use of certain key evidence.
The focus had shifted to court decisions, not the crimes, and the right-wing adroitly kept it there. That the left was outraged was a “vicious campaign to vilify the court as partisan and corrupt”. The Journal editorial board lectured that… “The job of the Supreme Court isn’t to follow the election calendar. Its duty is to consider the facts and law in the context of America’s constitutional order.” No mention that neither should it be the job of criminal prosecutions to follow the election calendar. The special counsel and the D.C. court had been under a months-long Supreme Court order to do nothing. Once the order was lifted, any resumption by Smith was called “election interference” by Republicans and right-wing media with the election four months away. “They prosecute him in several courts so that he can’t campaign. Arresting potential challengers is what former KGB operative Vladimir Putin routinely does.” That came from Russia scholar Gary Saul Morson. “The special counsel’s later filings” — referring to a superseding brief Smith filed to reflect the hurdles thrown up by the immunity decision — “suggest that he didn’t take the hint” of the court to drop the case. A New Yorker article observed that… “Republicans in Congress, meanwhile, have repeatedly claimed that the ‘deep state’ has weaponized federal law enforcement against Trump and his supporters”. Republicans had steered the federal cases away from the crimes to a plot against Trump as victim. The Journal‘s Kimberly Strassel wrote… “Only by convincing themselves that Mr. Trump threatens the existence of the republic can they justify their own weaponization of government to stop him.” Weaponization of the justice system had become the endlessly repeated trope. Garland had spun off Smith as special counsel to prevent any implication of the administration’s thumb on the scale of justice, but right-wing commentators such as Sean Hannity at Fox would pay that no deference. With no evidence, it was always “Biden’s Justice Department” that was seeking to derail Trump. Newly tapped to be Trump’s vice president, JD Vance decreed that the Justice Department is the “most corrupt” in U.S. history — prosecutions of Democrats Hunter Biden, Senator Robert Menendez of New Jersey and New York Mayor Eric Adams notwithstanding. what crimes?
One would never know Trump had committed crimes. I suppose we must add the obligatory “alleged” but we all watched the insurrection on television — Trump telling the crowd of thousands to “fight like hell” or “you won’t have a country anymore” and that “we’re going” to the Capitol &0151; and we had heard the tape at Mar a Lago of Trump boastfully showing top secret documents to anyone who happened to be in the room. It was incontrovertible that major crimes had been committed. And yet in a remarkable feat the right-wing media had expunged any mention that crimes were the reason for the federal indictments. Greg Jarrett, Fox News’s in-house legal analyst, would say: “These two federal cases…they should never have been brought. No fair and neutral prosecutor would have done it. They were purely political, legally anemic.” The cases were a “campaign of lawfare”, wrote Marc Thiessen, a conservative columnist at The Washington Post, a word unknown to dictionaries that became a universal addition to Republican vocabulary. “Their campaign of lawfare locked in Trump’s nomination,” he added.
For Jarrett at Fox it retrospectively became an “eight year old lawfare campaign that began with the Russia hoax and ended with these federal cases backfired on them”. (The “Russia hoax” meme is an identical crusade that has been running for years to bury all mention of the Russia contacts in Trump’s 2016 campaign for the presidency). As the January 6 case inched toward the Supreme Court, the Journal’s Strassel was concerned “whether the three liberal justices understand the grave risks of this lawfaring agenda.” Andrew McCarthy at National Review provided a definition: ”Lawfare is the noxious practice by which the incumbent government exploits its prosecutorial power to brand its political opponents…as dangerous criminals who pose an existential threat to the body politic.” The special counsel’s prosecutions were politically motivated lawfare. Nothing to do with the actual crimes. They’re never mentioned anymore.
Besides, there’s an election coming, so shouldn’t the Justice Department end the prosecutions and “leave the presidential election to be decided by the voters”, said National Review. Forget the indictments. Ancient history. The law should be cast aside. Let the public render the verdict. triumph
Which is what happened. “Americans decided it wasn’t disqualifying”, said David Brooks on the PBS NewsHour about January 6 and stolen documents. Thomas Goldstein wrote in the Times, “Democracy’s ultimate verdict on these prosecutions was rendered by voters on Election Day.”
We elected as president the man who tried to overthrow the government and who intends to pardon most of the rabble who helped him. Goldstein, who runs the well-regarded Scotusblog website that analyzes Supreme Court decisions and who has himself argued before the court, urges that all four cases — two federal, two state – be dropped: ”[T]he Constitution trusts the judgment of the American people to decide whether the cases against Mr. Trump, as he has argued, were political and calculated to stop him from being elected…Rightly or wrongly, they carry the stench of politics and, if pursued, could lay the groundwork for political prosecutions of future presidents.” Missing is any mention of the political stench of the Supreme Court pushing the federal cases up against the election calendar so that they could not happen and making Trump immune in the process. Brooks echoes Goldstein… ”And in my view I see that there is the danger in putting him sort of above the law, but to me the greater danger is that we use trials as political weapons in the years ahead.” But wouldn’t such trials require not only that a crime be committed by a future president but a crime entirely removed, thanks to immunity, from any connection to the office? That threads a needle, making Brooks’s vision of commonplace trials unlikely. Whereas by waiving the Trump prosecutions haven’t we instead made insurrection legitimate for any future president loath to leave the White House?
Then comes this from Goldstein: ”A central pillar of American democracy is that no man is above the law. But Mr. Trump isn’t an ordinary man.” So there we have it. Donald Trump is unique and therefore deserves to be uniquely above the law.
Besides, that wasn’t an insurrection, says Trump: ”That was a day of love. They didn’t come because of me. They came because of the election. They thought the election was a rigged election, and that’s why they came. Some of those people went down to the Capitol. I said, ‘peacefully and patriotically,’ nothing done wrong. At all. Nothing done wrong.”
in the Constitution — Special Counsel Jack Smith is closing his two federal cases against Donald Trump. He is doing so without prejudice, which means they can be brought again when (or should we say if) Trump leaves office, but that is unlikely.