January 6 Was a Crime

By Noah Rothman

Wednesday, August 02, 2023

 

National Review’s editors believe special counsel Jack Smith has made a grave error in alleging that the conduct of Donald Trump and his co-conspirators in the run-up to the January 6 riots amounts to criminal misconduct. The editors write that Smith himself is attempting to criminalize protected free expression and subvert the rule of law. I beg to differ.

 

Our editorial does not gloss over our shared aversion to Trump’s “appalling actions” in the wake of his 2020 loss. But it maintains that Trump’s misconduct was a political crime for which he was prosecuted in a political venue and, ultimately, acquitted. Dissatisfied with that outcome, it argues, the Biden administration empowered the special counsel for the “precise purpose” of attempting a “do-over for a failed impeachment.” The editorial implies that those who entertain the validity of Smith’s charges have succumbed to a fit of pique, and would do well to remember that “criminal prosecution is an inapt substitute for the congressionally driven political process.” But Trump’s second impeachment proceedings and what the former president is charged with here are distinct.

 

The sole article of impeachment brought against Trump in 2021 involved the charge of “incitement to insurrection.” By contrast, Trump is charged by Smith’s office with attempting to conspire against and defraud the United States government and disrupt its official proceedings. The distinctions between these allegations aren’t especially fine, and one should not be confused with the other.

 

The editorial maintains that “as the Supreme Court reaffirmed just a few weeks ago, fraud in federal criminal law is a scheme to swindle victims out of money or tangible property.” But there are, in fact, operative Supreme Court precedents indicating that efforts to defraud the United States government extend to the obstruction of its conduct.

 

Hass v. Henkel (1910) found that the “statute was broad enough” to include any “conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate.” Chief Justice William Howard Taft was similarly emphatic in Hammerschmidt v. United States (1924). “It is not necessary,” he wrote, “that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.”

 

The courts may find that Trump’s alleged false statements to government officials and agencies — and his alleged efforts to compel others to make such statements — in furtherance of a scheme to disrupt the proper workings of government are not sufficient to prove fraud. But that will require tackling these precedents.

 

The editorial also voices skepticism that the government can “prove beyond a reasonable doubt that Trump hadn’t actually convinced himself that the election was stolen from him.” Yet Smith’s indictment assembles mountains of evidence in support of the notion that Trump had no rational basis to maintain the belief that the election was stolen. Indeed, the former president appeared to privately acknowledge the invalidity of the claims he was making in public.

 

“Just say that the election was corrupt and leave the rest to me and the Republican Congress,” Trump told the acting attorney general when he was informed for the umpteenth time that the Justice Department could not and would not overturn the 2020 election results. “You’re too honest,” he told Mike Pence after the vice president objected to Trump’s requests to refuse to certify the election results, the clear implication being that his requests were, in fact, dishonest. Trump’s unindicted co-conspirators are alleged to have rejected on multiple occasions evidence disputing their claims, as did Trump himself. If Trump was blind to his loss, his blindness was willful.

 

I share the doubts expressed by National Review’s editors about the validity of the notion that Trump’s conduct violated a post–Civil War statute designed to criminalize the persecution of African Americans. But the editorial does not touch on Trump and his confederates’ organization of false slates of electors in the effort to mislead state governments and, in some cases, the imposter electors themselves — a subject on which the indictment dwells at length.

 

The document alleges that the Trump campaign attempted in seven states to suborn electors to “cast fraudulent votes,” “sign certificates falsely representing that they were legitimate electors,” and even fool electors into participating in the scheme “based on the understanding that their votes would be used only if” Trump “succeeded in outcome-determinative lawsuits within their states.” These fraudulent and falsely obtained documents were transmitted to the vice president and the national archivist with the intent to obstruct legitimate government activities and stop Biden electors’ votes from being counted.

 

Trump’s best defense against these claims is that no one should have been operating on the assumption that his nonsense was legitimate, and that his actions thus cannot constitute fraud. That could very well hold up in court. It does, however, seem like the rioters who ransacked the Capitol calling for the murder of America’s constitutional officers were not operating under such a cynical assumption. Nor were the electors or Republican National Committee officials who were allegedly “tricked” by Trump associates Rudy Giuliani and Ken Chesebro into signing onto a scheme that was supposed to be triggered only by legitimate courtroom verdicts.

 

Lastly, our editorial implies that Smith is aware of the flimsiness of the charges he has brought because, in his Tuesday statement, he lingered on the horrible outcomes Trump’s conduct produced rather than the statutes the former president is alleged to have violated. But just as every rational American supposedly should have known Trump’s lies were, in fact, lies, no one should need Jack Smith to take them by the hand and lead them to the conclusion that the riots were a direct consequence of the lies.

 

“The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation,” Thomas Jefferson wrote. “To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.” Donald Trump’s many failed legal challenges of 2020’s election outcomes and the many Americans he deceived created the conditions that erupted in violence. He lied repeatedly, brazenly, and likely knowingly. He suborned others to lie. He sought to obstruct the proper workings of government. And his behavior begat one of the darkest days in this country’s history.

 

All of which is to say: These charges deserve the hearing they are about to receive.