Yes, Trump Engaged in a Conspiracy to Steal an Election
It's Pretty Obvious to Anyone Who Isn't a Blind Partisan
Well, Donald Trump has been indicted. Again. I think this is the third indictment. It’s highly likely that he’ll be indicted for a fourth time whenever Fulton County District Attorney Fani Willis decides to finally show us all her work. I have frustrations with that investigation, but that’s a topic for another day.
The latest indictment—which is the second from a federal grand jury—is all about Trump’s effort to steal the 2020 presidential election after losing the election at the ballot box and challenging various aspects of the election in state and federal courts to tip the results in his favor. Now, few dispute the notion that Trump had the legal right to challenge the election in the courts or through the counting of the electoral votes on January 6, 2021.
Special Counsel Jack Smith doesn’t dispute that Trump had these rights. He doesn’t even dispute that Trump had a right to lie about the results of the election. Smith writes, “The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.”
Where things went awry were the submissions of fraudulent electors, the blatant attempt to intimidate Members of Congress who were counting electoral votes, and the attempt to bully Vice President Mike Pence into abusing his authority. As such, Trump has been charged with conspiracy to defraud the United States (18 U.S.C. § 371), conspiracy to obstruct an official proceeding (18 U.S.C. § 1512(k)), obstruction of and attempt to obstruct an official proceeding (18 U.S.C. § 1512(c)(2)), and conspiracy against rights (18 U.S.C. § 241).
There’s been some banter about mens rea. As a believer in this crucial element for criminal offenses, it’s important that prosecutors prove whatever state of mind Trump was in when he committed alleged crimes when and if the relevant statute calls for it. Looking at the four statutes, 1512(c)(2) requires only corrupt intent while 1512(k) appears to be strict liability for conspiracy. The other two, 241 and 371 also appear to be strict liability. For the uninitiated, strict liability means there isn’t a mens rea. (I haven’t looked into case law to see if the Supreme Court has read a mens rea in any of these statutes.)
I keep hearing Trump’s conservative apologists claim that Smith is prosecuting Trump for voicing his opinion. Look, if you believe this, there really is no hope for you. Again, Trump had a right to say he won the election even though he didn’t. He had a right to dispute that through legal means, up to and including objections during the counting of the electoral votes on January 6, 2021. Some Democrats disputed election results while counting electoral votes for the 2000, 2004, and 2016 presidential elections. In January 2005, for example, only 31 House Democrats voted to dispute the electors from Ohio. Even then-Rep. Bernie Sanders (I-VT) didn’t vote to sustain the objection. Only one Senate Democrat voted to sustain the objection.
Sure, the rhetoric around the 2000 and 2016 presidential elections, where the term “stolen election” became more routine, wasn’t helpful at times when hyperpartisanship was growing, particularly in the 2016 election. That being said, when we have a president—as much as I don’t believe he deserved to be president—who frequently claims that he won an election and was denied that win through unproven massive voter fraud then conspires with equally bad actors, who lack a shred of integrity, our vulnerability as a constitutional republic is exposed.
Trump did what he does best. He played on the fears of partisans in incredibly polarized times to intimidate Members of Congress into doing what he wanted them to do, but the effort began weeks before January 6 by trying to coax state officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin into essentially stealing the election with repeated false claims, intimidation, and/or urging state legislators to throw out electors legitimately won by then-President-elect Biden. Thankfully, constant roadblocks were thrown in the way by people with integrity.
Then, Trump and his cohorts tried to push slates of fraudulent electors to compete with electors that President Biden legitimately won. Now, I’ve talked to a couple of the fraudulent electors from Georgia. They weren’t told the veracity of what they were doing. They were told that they were keeping Trump’s legal options open by being fraudulent electors. They’re blameless if they thought that’s what they were doing. The indictment largely backs up that belief. District Attorney Willis in Fulton County, Georgia, was once reportedly considering charging the fraudulent electors. That would’ve been wrong.
Regardless, the real motive behind the fraudulent electors, considering that they were transmitted to the National Archives, was to have the legitimate electors thrown out on January 6 and replaced by the fraudulent ones. Vice President Pence rejected the plan, despite Trump’s frequent attempts to recruit him into the conspiracy.
Obviously, there’s a lot more that I’m not getting into about the conspiracy, including the attempt to bring the Department of Justice into it. Also, the fact that Trump had been told, repeatedly, that there wasn’t any massive voter fraud and that he lost the election. All of this amounts to a massive effort to disenfranchise millions of Americans who cast their votes in the 2020 presidential election in an effort by Trump and others to steal an election.
As for the events at the Capitol on January 6, a little after 12:00 pm, Trump told the crowd at his rally, “[I]t 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.”
Some would point out that Trump used the phrase “peacefully and patriotically” when referring to the protest at the Capitol. Point taken, as much as I think it’s pointless because of his behavior after. A riot was declared at 1:50 pm. The Capitol was breached at 2:12 pm. Vice President Mike Pence came within 40 feet of the rioters, some of whom want to hang him, while he was being escorted away from the Senate floor.
At 2:24 pm, Trump tweeted, “Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!" Do you think this tweet did anything to calm the crowd or did it exacerbate the situation? If your answer is anything but the latter, you’re full of it.
Granted, 14 minutes later, Trump tweeted, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” His own son said, “He's got to condem this shit. Asap.The captiol police tweet is not enough.” (Typos in the original.) Trump again tweeted at 3:13 pm, writing, “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!” By this time, the Capitol had been violently breached, law enforcement had been assaulted by rioters seeking to stop Congress from doing its job, and rioters were actively seeking out Speaker Nancy Pelosi and Vice President Pence. Trump still hadn’t asked the mob to leave.
Finally, at 4:17 pm, more than two hours after the Capitol was initially breached, Trump tweeted a video in which he asked rioters to go home, “I know your pain, I know you're hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side. But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don't want anybody hurt. It's a very tough period of time. There's never been a time like this where such a thing happened where they could take it away from all of us—from me, from you, from our country. This was a fraudulent election, but we can't play into the hands of these people. We have to have peace. So go home. We love you. You're very special. You've seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel, but go home, and go home in peace.”
And at 6:01 pm, Trump took to Twitter again. He wrote, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”
Sadly, there are far too many who still believe the lies about the 2020 presidential election. It’s sad. For years, I’ve been told by conservatives that the left are low-information voters. Partisans retreat to their biases, and it’s frustrating, but I’ve never seen such a categorical rejection of reason, evidence, and facts as I’ve seen from too many on the right over the course of the past several years. Trump is a narcissist who doesn’t care about anyone but himself, and most conservatives still believe he’s one of them. You’re being lied to about the 2020 presidential election by the ex-president and those who are close to him.
I don’t expect Trump to actually be convicted in any of these cases, but he deserves to be. He deserves to go to prison for the crimes that he’s committed. The gravity of convicting a former president—as corrupt as he clearly is—may be too much for a jury.