Donald Trump’s latest indictment is a test for America

Analysis: Donald Trump is accused of committing crimes while in office. How far can a president go to cling to power? Alex Woodward reports

Friday 04 August 2023 10:39 BST
Donald Trump, speaking to a crowd of his supporters on 6 January, 2021 in Washington DC, before a mob stormed the halls of Congress.
Donald Trump, speaking to a crowd of his supporters on 6 January, 2021 in Washington DC, before a mob stormed the halls of Congress. (AFP via Getty Images)

The latest case of United States of America v Donald J Trump strikes at the heart of a question that has clouded the former president’s time in and out of office: Can he unequivocally lie and use that deceit to influence the outcome of a democratic election, against the will of millions of Americans?

An indictment against the former president for his very public plot to overturn the 2020 presidential election is remarkable in that it is not only his third criminal indictment within four months, a historic precedent for this or any former or current president in US history. It also chronicles the alleged actions of a sitting president on his way out to bring American democracy down with him.

Mr Trump already is criminally charged in New York City in a case connected to hush money payments to silence stories of his alleged affairs in the lead up to his 2016 election. The US Department of Justice also has charged him with his alleged retention of classified documents after leaving the White House.

But the indictment unsealed on 1 August outlines a graver threat.

Michael Waldman, president of the Brennan Center for Justice at NYU Law, said the charges “matter beyond the fact that a former president is accused”.

Donald Trump and his co-conspirators tried to overthrow American democracy. They wanted to negate the votes of millions of Americans. They did this using phony claims of voter fraud and rigged elections. These conspiracy theories are still being used to justify changes to voting and election law all over the country. Donald Trump will stand trial,” he said in a statement to The Independent. “The Big Lie will be on trial too.”

Watch: Donald Trump's third indictment explained

The indictment outlines the familiar contours of a conspiracy-driven scheme and the violence that followed it, a narrative that members of Congress investigated for more than a year before publishing an 845-page report detailing Mr Trump’s refusal to cede power, regardless of the outcome.

That report and countless investigations into the events surrounding January 6 have painted the attack on the Capitol as part of a much-larger effort to preserve a fragile American democracy.

Unlike the other indictments against him, the latest charges amount to accusations of crimes committed by a man who president when he allegedly committed them.

For months leading up to the 2020 presidential election, then-President Trump routinely and publicly undermined the legitimacy of an election that hadn’t even happened yet, sowing doubt about whether Americans’ votes would be counted at all.

But as the indictment alleges in a detailed, chronological accounting of the scheme, the former president was routinely made aware that his statements were false – by two attorneys general, Justice Department officials, an election security chief, his vice president, his campaign, and Republican governors and election officials who voted for and endorsed him.

According to the indictment, one senior adviser said the campaign’s legal team “can’t back any” of the former president’s claims.

“I’ll obviously hustle to help on all fronts, but it’s tough to own any of this when it’s all just conspiracy s*** beamed down from the mothership,” the adviser wrote, according to prosecutors.

Federal prosecutors outlined what, allegedly, happened next, when it became clear Mr Trump was losing:

Then-President Trump and his allies conspired with officials in states that he lost to invalidate ballots and use fraudulent electors to cast their electoral college votes on his behalf, relied on the Justice Department to force the plan through, and pressured his vice president to go along with it, before exploiting the violent disruption in the halls of Congress to make another last-ditch attempt to reject the outcome.

“It was an attempt to usurp from the people our right to choose our own leaders, our own president, through the electoral college system,” according to Democratic US Rep Jamie Raskin, who served as the lead impeachment manager for Mr Trump’s second impeachment for the events surrounding January 6.

“They’re very grave and serious charges, of course, but extremely well anchored in the facts,” he told MSNBC.

The resulting four-count indictment accuses the former president of committing three criminal conspiracies while he was still in office.

Mr Trump is accused of a conspiracy of “dishonesty, fraud, and deceit” to “impair, obstruct, and defeat” the process of collecting and certifying votes in the states, a conspiracy to obstruct the certification of those votes in Congress, and a conspiracy to deprive the right to vote and have one’s vote counted, a violation of long-standing civil rights law first enacted in the violent aftermath of the Civil War.

The indictment also lists six unnamed co-conspirators who are likely to include Trump-connected attorneys and government officials.

Mr Trump relied on his “prolific” lies to help organize fake electors in several states to submit false vote certificates to Congress, positioning Mike Pence to oversee a fraudulent certification of those bogus slates of electors on 6 January, 2021, the indictment alleges.

The former president also allegedly leveraged the Justice Department to advance the scheme; at one point in the indictment, prosecutors suggest that the Trump administration was willing to deploy the military to crush opposition to his election, if he were to successfully overturn Mr Biden’svictory.

Three days before January 6, a co-conspirator believed to be Justice Department official Jeffrey Clark spoke with a deputy White House counsel who had previously warned Mr Trump that “there is no world, there is no option, in which you do not leave the White House”.

“Well,” Mr Clark allegedly replied, “that’s why there’s an Insurrection Act.”

Following the hours-long siege at the Capitol on January 6, a violent show of force fuelled by Mr Trump’s baseless narrative, his aides and co-conspirators exploited that chaotic delay to pressure Congress to refuse the results for a final time.

“We are talking about democracy on the brink, as you read through this indictment,” Alyssa Farah Griffin, a former White House communications director under then-President Trump, told CNN. “It shows how close we got.”

The charges are unprecedented in their scope, but the tools to prosecute election interference and voter fraud conspiracies that have deprived Americans’ rights have been in place for more than a century.

“Our democracy and our legal system are actually prepared to deal with these kinds of unprecedented situations,” Sean Morales-Doyle, director of the Brennan Center’s voting rights and elections programme, told The Independent. “I think the history is important, because we’re also not at the end of history here.”

While he ultimately failed in his efforts, Mr Trump’s narrative of victimisation and “stolen” elections has infected a wide swath of the American public, particularly Republican officials and their supporters.

Mr Trump’s rhetoric has persuaded roughly three in 10 Americans to believe the lie that the election was stolen from him. His false and inflated claims, spanning more than a decade, have sowed enough doubt among his supporters to construct the lie of “stolen” and “rigged” elections, animating Republican attempts to challenge results and craft dozens of pieces of legislation to do what Mr Trump failed to do in court and while in office.

Since leaving office, the former president has continued a narrative of political persecution as he seeks the 2024 Republican nomination for president, with a reliable mention of “stolen” or “rigged” election in his fundraising messages, on his Truth Social, and on the stages of political conferences and campaign rallies.

Mr Trump, who has frequently used projection to accuse his rivals of doing the very things of which he has been accused, now refers to the multiple investigations and indictments against him as politically motivated “election interference” – a charge at the center of his latest indictment.

He accuses his rival of “weaponising” the federal government against him – once again, what prosecutors have alleged Mr Trump did to stop Mr Biden from winning the 2020 election.

Mr Trump and his defenders argue that the real crime is the unrelated case involving Hunter Biden, and what they allege is a Justice Department coverup to protect him, while they ignore the Trump family history of alleged fraud, self-dealing and enrichment at the public’s expense.

Fox News has spent considerable airtime suggesting that the indictments are timed to distract from spurious Republican-led investigations into the president’s son, casting Mr Trump as a victim of his politically motivated rival.

The network – less than four months after its historic $787m settlement to avert a potentially devastating defamation trial involving many of the same lies at the center of Mr Trump’s push to overturn election results – immediately got to work to defend the former president as news of the indictment broke. Jesse Watters, who inherited Tucker Carlson’s prime-time slot after he was fired from the network, called the indictment “political war crimes”.

Right-wing media pundits claim he was merely acting within his authority to challenge the outcome of the results, or simply using his First Amendment protected rights to reject them, or that he truly believed, despite overwhelming evidence, that the election was stolen from him.

“I would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations were false,” lead Trump lawyer John Lauro said on Fox News the night of his indictment.

The indictment makes clear that Mr Trump has the right – “like every American” – to say whatever he wants about the election, even to falsely claim that he won. But what he cannot do, prosecutors argue, is weaponize those lies in a conspiracy to overturn the results.

“They’re not attacking his First Amendment right,” former US Attorney General Bill Barr told CNN. “He can say whatever he wants. He can even lie. He can even tell people that the election was stolen when he knew better. But that does not protect you from entering into a conspiracy. All conspiracies involve speech, and all fraud involves speech. So, free speech doesn’t give you the right to engage in a fraudulent conspiracy.”

With each indictment, the former president has fanned the flames of outrage and suggested that the US faces World War III and imminent violence without his leadership. With news of criminal charges in New York City in March, he demanded widespread protests and called America a “dying” and “third world” country where “leftist thugs” are “killing and burning with no retribution”.

“There’s no other way to say it: our nation is teetering on the brink of tyranny,” a campaign fundraising message announced after news of his latest federal charges. On his Truth Social, he compared the current administration to “Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes”.

Mr Trump remains the frontrunner for the Republican Party’s nominee in the 2024 presidential race, and by all measures it appears he would not do anything different should he return to the White House.

His 2024 campaign agenda builds from his dark vision of American “carnage” from his first moments as president and the four chaotic years that followed. In recent months, he has demanded the executions of drug offenders and human traffickers, considered the “termination” of the US Constitution, pledged national restrictions on abortions and gender-affirming care for trans people, and promised political vengeance and “retribution” for his supporters, offering himself up as a martyr for a movement he inspired.

“I’m being indicted for you,” he tells them.

Federal prosecutors have already charged more than 1,000 people in connection with the attack on the Capitol on 6 January, 2021. Donald Trump is now one of them.

“January 6 and the effort to overturn the 2020 presidential election, together with the first criminal trials of an American president, will now become singularly infamous events in American history,” conservative former federal judge J Michael Luttig said. “These events will forever scar and stain the United States. And they will forever scar and stain the United States in the eyes of the world.”

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