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The January 6 Case Against Donald J. Trump

To anyone who followed the events between the 2020 election and January 6, 2021, the notion that it would be difficult to prove Donald J. Trump guilty of multiple crimes against the country is ludicrous. The story teems with plots to overthrow the election of Joe Biden. The man attempted to end American constitutional democracy in the most treasonous act against the United States since secession.

And yet the three statutes that Special Counsel Jack Smith enumerated in his target letter to Trump — conspiracy, witness tampering, deprivation of rights — seem timid. But as attorneys speculate on what events they likely refer to, they take on some gravity, so it's wait and see. In the meantime, below we spin out the back stories behind each.

statute #1: conspiracy and the fake electors

There is some agreement that "conspiracy" will expand to "conspiracy against the United States" and that Smith has shown particular interest in the "fake elector" scheme.

The state legislatures were to send "slates" of electors to Congress on January 6th to submit the Electoral College votes awarded to the winning candidate in their state.

Certification of their submissions is a ritual called for by the Constitution.

The extremely close election hinged on narrow Biden wins in a handful of states. To block or at least delay by dispute and confusion the certification of those states, several in Trump's circle came up with a scheme to create fake slates of electors to challenge the official rosters. The genesis came from Trump's energy secretary and former Texas governor Rick Perry who, just one day after the election, urged an "aggressive strategy" in a text message to Trump's Chief of Staff Mark Meadows for Republican legislators to "just send their own electors to vote and have it go to the [Supreme Court]."

With court cases failing, Mr. Trump openly called for state legislatures to reverse the votes in their states, claiming imaginary fraud and tweeting his reinterpretation of how America should work

“Hopefully the Courts and/or Legislatures will have the COURAGE to do what has to be done to maintain the integrity of our Elections, and the United States of America itself”.

Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, pressured 29 Republican state lawmakers in Arizona to set aside Joe Biden’s popular vote victory and choose electors who would vote for Trump. Most states have passed laws that require their legislatures to honor the majority vote, but for a president concerned only for retaining power, the tradition of legislatures following the will of their people was just another norm to trample.

Trump was directly involved in the scheme. The president even brazenly invited two Michigan legislators to the White House; the state's senate majority leader and house speaker did not succumb to the pressure. Trump and crew went after the certification boards of large counties, asking them to withhold their vote. Measures were attempted to delay certification of Biden-won states on the December 14th deadline when delegates were by law to meet and register their Electoral College votes. Longtime election lawyer and expert Ben Ginsburg, a Republican, said,

"It's totally unprecedented for any candidate, let alone a sitting president, to interfere with a state's certification process".

John Eastman, a California lawyer and professor associated with the Claremont Institute, a conservative think tank, produced a memo that proposed recruiting alternate — that is, "fake" — electors for the states closely lost to Biden. "I love it”, Meadows wrote in a text exchange with Congressman Andy Biggs after he had been briefed on the scheme. Was he the decider? Trump campaign associate general counsel Joshua Findlay told the January 6 committee investigators, “It was my understanding that the president made this decision”.

Fake elector lists were developed for five states — Arizona, Georgia, Michigan, Nevada and Wisconsin. They were even submitted to the National Archives, the correct procedure for legitimate elector slates. A total of 59 individuals from five states signed the documents.

This was no grass roots movement. It bore all the telltales of centralized organization. "A single glance at the five phony certificates shows that they are nearly identical in format and text, right down to the fonts", pointed out Philip Rotner, a lawyer who writes at The Bulwark.

On January 2nd, Trump, his private lawyer Rudy Giuliani and Eastman engineered a conference call to 300 state legislators to equip them with what they claimed was evidence of fraud and to spur them to “decertify” their elector votes and reassign them from Biden to Trump. “You are the real power,” Trump told them, according to the conservative Washington Examiner's report. “You’re the ones that are going to make the decision”, he told them, directly involving himself in the overthrow scheme. Scores of state lawmakers from the battleground states responded, signing on to a letter asking the vice president to delay the congressional acceptance of electoral college votes for at least ten days after January 6th to allow “our respective bodies to meet, investigate, and as a body vote on certification or decertification of the election.”

Trump directly pressured then Arizona Governor Doug Ducey to deny Joe Biden's election win in Arizona. Video shows Ducey signing the certification for the new president as the ousted president apparently made one last-ditch attempt to change his mind via a phone call.

The assumption of what Smith will prove is that Trump and others conspired to defraud the United States. Had the scheme succeeded, had enough Biden states been flipped to the Trump column, we the people would have had our choice of the next president taken away illegally.

statute #2: witness tampering that's not witness tampering

Section 1512 of Title 18 of the U.S. Code constitutes a broad prohibition against tampering with a witness, victim or informant, but it includes more than 30 other crimes, one of which pertains to "Whoever corruptly...obstructs, influences, or impedes any official proceeding, or attempts to do so...".

Smith seems to be aiming at the attempt to obstruct the Congress which met on January 6th for the constitutional certification of Joe Biden as the newly-elected 46th president in accordance with the nation's near quarter- millennium of democracy.

Vice President Mike Pence, in his other role as president of the Senate, was to count the votes in the joint session of Congress as called for in the Constitution. In the final days beforehand, Trump began a campaign to pressure and intimidate Pence to block or at least delay the certification of the states' electoral votes. Had the plot succeeded, it would have been an actual stolen election.

On Christmas Eve, the Trump administration called upon John Eastman to write a memo "asserting the vice president's power to hold up the certification". Eastman submitted a two-page memo — later expanded — that laid out six steps by which Pence could halt the Electoral College count and go on to win for Trump a second term.

On January 4th, Trump met with Pence and Eastman in the Oval Office. Eastman told Pence that he had the constitutional authority to stop the certification process. Pence disagreed, for the good reason that the Constitution provides no such authority. The Twelfth Amendment says only that the vice president "shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted". He was only to preside. There is no further mention of his duties or authority.

As the zero hour of January 6th approached, Trump lieutenants booked as their "command center" a suite of rooms at the pricey Willard Hotel a block from the White House to make final plans. Phone records have Trump calling Giuliani and Steve Bannon at the Willard, evidence that he was fully aware of the conspiracy afoot.

On the morning of the 6th, after tweets from the residence to remind Pence once again that he had the supposed power to delay certification when he presides that afternoon, Trump called Pence to make one final effort. Earlier that morning Pence had been "very arrogant" in response to Trump's pressure for him to disrupt certification. A number of people were in the Oval Office. They could not hear Pence's side of the conversation, but several gave the January 6 committee accounts of what Trump said that were mutually consistent. When Pence would evidently still not relent, Trump upbraided him in the vein of, "You're not tough enough to make the call". In "Peril", authors Bob Woodward and Robert Acosta aver that Pence told Trump, “When I go to the Capitol, I’ll do my job” and not block Biden’s certification. That angered Trump, who answered,

“Mike you can do this. I’m counting on you to do it. If you don’t do it, I picked the wrong man four years ago. You’re going to wimp out!”

Ultimately, the Willard committee settled on only having Pence refuse to count Biden’s electors in the swing states that Trump had narrowly lost and then call for a week's delay, supposedly for the states to resolve concerns about conjured voting irregularities and come up with electors for Trump to replace their original slates for Biden. Or come up with deadlocks that would throw to the House of Representatives the vote for who was to become president, a vote that Trump would win because each state constitutionally has a single vote in this Twelfth Amendment special circumstance and there are more Republican dominated states.

Pence's cooperation was apparently assumed. But the vice president was not on board.

Republicans in Congress did follow their plan to object to certain states' submission of electors. It is a process that requires at least one member each of a state's House and Senate delegation to object to that state's elector slate, followed by debate, after which all in both chambers vote. This had begun. Arizona Congress members had challenged the slate of electors the state had submitted when the mob crashed into the building causing a lockdown.

When sessions resumed at around 8:00 p.m., lawmakers continued with an objection by a Pennsylvania representative and senator, but then dropped the rest of the states they had planned to challenge. What was extraordinary was that so effective had been Trump's undermining of the election that there were challenges. Of the 535 total of senators and representatives, a stunning total of eight senators and 139 representatives voted with the two states' objections in a bid to overthrow the election and keep an illegitimate Trump in the White House.

At the protest rally on the Ellipse, the then-president implicated himself still further.

“All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people. ..And I actually, I just spoke to Mike. I said: 'Mike, that doesn't take courage. What takes courage is to do nothing. That takes courage.' And then we're stuck with a president who lost the election by a lot and we have to live with that for four more years. We're just not going to let that happen."

statute #3: deprivation of rights

The surprise in Smith's letter is his wielding of Section 241 of the criminal code which makes it a crime to “conspire to injure, oppress, threaten, or intimidate any person” in the “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” It dates from Reconstruction after the Civil War to give federal agents the means to arrest southern Whites who were terrorizing newly-freed Blacks to prevent them from voting. Infrequently used today, it has

legal talent on television talk shows straining to come up with likely scenarios of how Smith & Co. will apply it.

Here's our recommendation and perhaps a bet: Smith might have tacked on that third statute only to condemn Trump for his particular act of vengeful persecution that ruined the lives of two election workers in Georgia — Ruby Freeman and her daughter Shaye Moss — which brought them death threats from the White supremacist deviants forcing them out of their homes. Trump repeatedly accused them of processing a suitcase of phony ballots for Biden without any evidence whatever and even after video of the Atlanta site completely debunked the lie. Both testified before the January 6 committee, Freeman saying,"There is nowhere I feel safe. Nowhere" and choked with emotion asked, "Do you know how it feels to have the president of the United States target you?".

more to come?

Conspicuously and disappointingly absent is the charge of insurrection. Smith dodged it as a charge, say legal savants, because it could be difficult to connect Trump directly to what happened at the Capitol despite the obvious: there would have been no one at the Capitol had not Trump told them to come.

And what about the conspiracy of the Big Lie, the fantasy of the stolen election, as an enormous fraud perpetrated on the American public that poisons the minds of tens of millions of Americans still?

Clearly, this story does not end with Smith's three items. We expect to hear protests that he has not gone far enough.

8 Comments for “The January 6 Case Against Donald J. Trump”

  1. David Barnett

    The counting of electors is not a mere rubber-stamp formality, but an important constitutional procedure and an integral part of the election of the president.

    Similarly, presenting alternative slates of electors is the constitutional way to protest the integrity of the election in any given state. The right to do so is 1st amendment protected at the very least. It is up to congress (and the VP) to decide which electors (or even none) to accept when there is a dispute.

    If anyone should be prosecuted for interfering it is those who needlessly adjourned the proceedings and then failed to resume exactly where they left off, completing the challenge and count process.

    Smith himself is attempting to criminalise a constitutionally prescribed and protected process. Do you really want to allow the setting of such a dangerously lawless precedent?

    • Will Childs

      The First Amendment avails groups to protest but not to declare themselves electors, which is the province of state legislatures. The reader apparently would have any number of self-appointed electors showing up in January for Congress to choose from, in which event what’s the point of elections if rival candidates can be chosen other than who voters picked?

      • David Barnett

        Will Childs said: “The First Amendment avails groups to protest but not to declare themselves electors”.

        If there is any doubt (even imaginary) about the integrity of the election, declaring a rival slate is protected speech. That does not mean that congress is obliged to recognise the rival slate*. It does mean that it cannot be prosecuted as “fraud” or any other state sanction.

        The right to protest the integrity of an election, even in ways YOU consider bizarre (short of actual violence) is sacred. To tamper with that is imperils us all.

        * Congress can judge, for example, whether the state followed its own election procedures.

        • Will Childs

          Passing themselves off as the officially chosen electors (there is no other kind, no amateur self-appointed electors) is fraud. They had no need for fake electors. There is a process for challenging what the state legislature submits,established by the Electoral Count Act of 1887, the very process that you thought should have continued. It’s even mentioned briefly in the article. Unfortunately, though, that process was deployed not because there was anything wrong with the few battleground states’ submissions, but to corruptly keep Trump in power for another four years as if he had won, proof totally lacking. You mentioned precedent. Would that be the sort of precedent you’d welcome?

          • David Barnett

            When faced with a judiciary which bends over backwards to avoid looking at the evidence of election malfeasance and fraud, the first amendment right to protest it flamboyantly is essential to the preservation of democracy.

            Remember, the system depends on losers’ consent; and you do not get it by gaslighting and punishing dissent.

            Nor do you want to leave dangerous weapons within reach of criminals. You may think you have the right to use your current power to crush your political opponents whom you view as deluded and possibly criminal. But what are you going to do when the tide turns so they have the power and turn the weapons YOU made on you?
            P.S. Without looking at the details, it defies credulity that Biden’s lacklustre 2020 campaign (I am being charitable here) garnered him 5 million more votes than Obama achieved in 2012 or 2008.

            P.P.S. Fraud and electoral skulduggery in the cities is not new. It goes all the way back to the ratification of the U.S. Constitution itself in 1787.

            • Will Childs

              “Use your current power to crush your political opponents” says you think it couldn’t possibly be other than corrupt and that no action should be taken against Trump, that he should be free to break any law he chooses.
              Trump and cohort ardently sought evidence of fraud to back up his imaginary stolen election and came up with nothing. Close to three years on and still nothing. His own people thought it nonsense.
              What defies credulity is thinking that there must have been five million phony ballots to account for Biden’s win. It was extra millions voting to stop Trump.
              I’ll leave you the last word.

              • David Barnett

                Politics is, by its very nature, institutionalised cheating. That is why it must be regulated strictly and its scope limited strictly. Frighteningly, you, and millions like you, are willing to allow politics into everything. That is how totalitarian tyranny thrives.

                I wouldn’t mind you living in your gaslit echo-chamber, if the consequences were confined to you and your echo-chamber alone.

            • Erik von Specht

              Biden getting more votes than Obama is not a shocker under the circumstances at all. Consider:
              1) You had a HIGHLY motivated electorate DESPERATE to get rid of Trump and therefore a greater voter turn-out (58.6% in 2012 vs 66.8% in 2020)
              2) I would suggest Obama’s race would have been a factor that would have kept at least some voters from voting for him. Biden did not have to overcome this.
              3) The US population was larger in 2020 vs 2012 – one should therefore expect more votes.

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