By Peter J. Wallison
Friday, August 11, 2023
Many Republicans are attracted by the lawyerly view that
Donald Trump’s indictment goes too far. The recent National Review article by John Yoo
and John Shu reflects this position, questioning whether any statute
actually covers what Trump did in trying to overturn the 2020 election. The
article notes that three statutes that would normally be used for cases in
which a valid election had been challenged were not cited in the Trump
indictment, and questions why the prosecutor — Jack Smith — ignored them and
looked elsewhere for the statutes to cite.
The answer is that all the statutes the authors referred
to are based implicitly or explicitly on the use of force to interfere with an
election or other event. From what we know thus far, Trump probably couldn’t
have been indicted under those laws, even though many call the riot at the
Capitol an insurrection and see him as the instigator.
Recently, a legal memorandum by one of the unindicted
co-conspirators with Trump was published by the New York Times. It
attempts to argue, with many caveats, that what Trump and others were planning
could possibly be legal, but in doing so it confirms the details of the plan
that Trump had apparently had in mind. If this is the direction the prosecution
is heading, it takes this case out of a dispute about what Trump actually
believed about the 2020 election — the First Amendment question — and into a
prosecution about a corrupt plan to overturn the election through
extra-judicial or unconstitutional means.
If so, his actions are historically unique, raising the
further question whether plotting to overturn a valid election is a crime under
existing laws. Most Americans would probably agree that challenging an election
in the courts is a valid action, but seeking to overturn the election through
extra-judicial means has never been litigated.
One of the major issues raised by the Yoo/Shu article is
whether it does more harm than good to try Trump for his efforts to overturn
the election. “A verdict based on loose facts and flimsy law,” they write,
“will leave many doubtful of the conviction and more distrustful of the Justice
Department and the criminal justice system, especially at a time when public
trust in our institutions is already in decline.” Actually, it could be worse
than this. A conviction could alienate a large portion of the Republican Party
from electoral politics — solemnizing Trump as a Republican martyr for the
foreseeable future — and an acquittal could boost his chances of election in
2024.
So was it a good decision to charge Trump for attempting
to overthrow the 2020 election? I think the answer is certainly yes, for the
simple reason that we cannot allow a president to ignore the Constitution’s
structure and meaning in an attempt to remain in office. If a plan to overthrow
an election by getting the vice president to throw out valid electors and
replace them with fake electors is not undermining the Constitution, what would be?
There are stories that Trump considered using the military to collect allegedly
fraudulent voting machines. Would that have been going too far? Without an
effort to protect the Constitution, we leave the election process vulnerable to
the next Trump who comes along.
It’s important to understand that only the steadfastness
of Vice President Pence stood between the success and failure of Trump’s plot.
If he had followed Trump’s orders and sent the list of fake electors — along
with the valid electors — back to the states, it would have enabled Trump and
his supporters to claim that he remained the president until this entirely
false “issue” was resolved. If so, given the slow movement of the legal
process, he might still be sitting in the Oval Office today.
Because Pence would not follow Trump’s directions, this parade
of horribles did not occur. But does that mean that Trump should not be
prosecuted?
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