By Jonah Goldberg
Friday, August 18, 2023
In the wake of the Georgia indictments, a lot of people
didn’t understand that “predicate acts” in a racketeering case don’t have to be
illegal by themselves. Let’s say, to expand on David
and Sarah’s analogy, the staff of The Dispatch decides to
get into the kidnapping business. At an “editorial” meeting I bark out orders:
“Okay Drucker, you get the duct tape. Isgur, you find us a good nondescript
getaway car. Hayes, just keep eating cheese curds until we find something for
you to do.”
Drucker gets the duct tape, Sarah gets a sweet AMC Pacer
with a tricked-out engine. Hayes provides encouragement. And then we head out
to kidnap George Will and hold him for ransom. (“He’s a national treasure!
People will pay for his release!”)
When we’re inevitably caught and charged, I won’t have
many defenders. But Isgur and Drucker fans might say, “Oh, so buying a car or
duct tape is a crime now!? Come on!”
Buying such items isn’t a crime, but buying them in
furtherance of a crime is evidence that you committed the crime. Similarly,
using my instructions—probably secretly recorded by Andrew Egger—as evidence
against me in court would not be a violation of my free speech rights. Because
while you’re free to say whatever you want in this country, if you say things
as part of a criminal enterprise (“Kill that guy,” “Rip off those mattress
tags!” etc.), it can be used against you.
With that bit of legal pedantry out of the way, let’s get
to the point. There are a lot of acts in the Georgia indictment that are not
illegal in their own right but are part of a broader criminal scheme that
is—allegedly—illegal. So, Trump’s tweets and speeches are not crimes in
themselves, but they are evidence toward proving the larger alleged “criminal
enterprise.”
So, let’s talk about Trump’s criminal enterprise.
Specifically, let’s pick up from last
week. As I noted, the central claim Trump’s lawyers and apologists all
cling to is that Trump sincerely believed he won. As I wrote, “The best defense
that Trump and his praetorians can come up with is that he was so delusional,
so narcissistically deranged, that he couldn’t let go of the belief that he
won. And this is their defense.” I’m under no illusions that I can
shake many of these people off of this belief. But fortunately, the people who
need to be convinced are not trolls, flacks, hacks, groupies, and highly
compensated—when Trump pays them—lawyers. The relevant people are called
“jurors.”
How might an actual juror look at the claim Trump didn’t
know he lost? I’ll skip all of the points I made before about him ignoring what
his White House counsel, attorney general, vice president, campaign manager,
and private firms he hired, all told him.
The most interesting act out of the 126 acts laid out in
the indictment is the first one. It reads:
On or about the 4th day of November
2020, DONALD JOHN TRUMP made a nationally televised speech falsely declaring
victory in the 2020 presidential election. Approximately four days earlier, on
or about October 31, 2020, DONALD JOHN TRUMP discussed a draft speech with
unindicted co-conspirator Individual 1, whose identity is known to the Grand
Jury, that falsely declared victory and falsely claimed voter fraud. The speech
was an overt act in furtherance of the conspiracy.
The most significant claim here is that Trump always
planned to cry, “Fraud!” if he lost regardless of the evidence. This is not a
shocking revelation, given that he has a long history of preemptively saying
that the only way he might lose anything is if his opponents cheated or rigged
the game.
Rigged all the way down.
Lest you think I’m making that up, let’s review some
examples.
For starters, even when Trump won in
2016, he still claimed he was cheated because he didn’t win the popular vote.
“In addition to winning the Electoral College in a landslide,” he declared in
2016, “I won the popular vote if you deduct the millions of people who voted
illegally.” His own commission for finding evidence of these illegal voters
came up with bupkis.
Again, in 2016, he prepped the post-defeat spin. “The
election is absolutely being rigged by the dishonest and distorted media
pushing Crooked Hillary – but also at many polling places – SAD,” he tweeted in
October 2016. At a Pennsylvania rally, he
told the crowd that it’s “so important that you get out and vote. So
important that you watch other communities because we don’t want this election
stolen from us.”
Before that, he claimed the
GOP rigged the primaries against him.
“First of all, it [the primary season] was rigged, and
I’m afraid the election is going to be rigged. I have to be honest. Because I
think my side was rigged. If I didn’t win by massive landslides—I mean, think
of what we won in New York, Indiana, California 78 percent. That’s with other
people in the race, but think of it.”
“Now we have one left, one left, one left,” Trump said,
referring to his general election opponent, Hillary Clinton. “And in theory, in
theory it should be the easiest, but it’s a rigged system. It’s a totally
rigged system. The elections are rigged.”
He even claimed that Ted Cruz was one of the riggers:
“Ted Cruz didn’t win Iowa, he stole it. That is why all of the polls were so
wrong and why he got far more votes than anticipated. Bad!”
Okay, you get the point.
And you can be sure that his defenders will say that none
of that is proof he was lying about the 2020 election. Heck, you could even
argue it’s evidence of his state of mind. “See? This just proves he has a long
history of sincerely believing convenient bullsh-t!” Fair enough. None of that
stuff was criminal, but it does lay a foundation for his tendency to lie.
Moreover, there’s a difference between merely whining
about make-believe stuff and actually doing things—and inducing
others to do things—based on lies and other fraudulent claims. It’s the
difference between saying you don’t have a date for the prom because your
Canadian supermodel girlfriend has a photoshoot and forcing a Canadian
supermodel at gunpoint to claim you spoiled her for other men. Okay, maybe not
exactly, but you get the point.
The causal arrows.
But Trump’s bogus 2020 claims, starting on Election
Night, were always framed as a response to actual events and evidence. He and
his co-conspirators constantly, and falsely, claimed there was “overwhelming
evidence” of fraud. They just couldn’t produce it. Indeed, pretty much all of
those claims have been debunked—by investigations, audits, recounts, and
courts. But if prosecutors can demonstrate that he planned to cry fraud no
matter what if he lost, it would help demonstrate that he never
actually cared about evidence.
More importantly, if he actually put plans into
effect—issued orders, coordinated with his band of misfit enablers, etc.—to
claim fraud when none existed, that would go a long way toward demonstrating
his criminal intent. All of the Trumpists insisting that he “really thought he
won” will still mouth this drivel, but whatever persuasive plausibility such
claims have would probably evaporate in front of a jury if prosecutors could
prove the causal arrows go:
Plan to Claim Fraud ➔ Lose the Election ➔
Claim Fraud ➔ Muster Forces to Act on the Lie.
Co-conspirator No. 1
The other interesting thing about Act 1: The date of
October 31.
It didn’t get a lot of coverage, but last year Mother
Jones obtained a tape of Steve Bannon explaining what Trump
would do when he lost the election (people forget, but the campaign knew he was
almost surely going to lose well before Election Day).
“What Trump’s gonna do is just declare victory. Right?
He’s gonna declare victory. But that doesn’t mean he’s a winner,” Bannon said
chuckling. “He’s just gonna say he’s a winner.”
Bannon goes on describing almost exactly what happened a
few days later: “At 10 or 11 o’clock Trump’s gonna walk in the Oval, tweet out,
‘I’m the winner. Game over. Suck on that.’ If Trump’s losing by 10 points, he’s
just going to say, ‘They stole it.’”
A spokesperson for Bannon told Mother Jones the
tape wasn’t “news” because he’d said similar things on his War Room podcast.
I’m not sure how exactly that’s a defense. But okay.
Still, it’s interesting that Bannon said all of this on
October 31, the same date that Unindicted Co-Conspirator 1 talked to Trump
about his plan to claim fraud on Election Day. Is Bannon unindicted
Co-Conspirator 1? Hell if I know. If he is, that might mean he threw Trump
under the bus, which would be fun. If he’s not, that means there’s more than
one person who can corroborate that this was always the plan.
Then again, we already know that more than one person was
involved in the plan. Just this week, a
clip from a documentary surfaced showing Roger Stone laying out the
plan two days before the election was called.
There’s plenty of additional evidence that Trump knew he
lost, aside from all the people who told him he lost. His comms director testified that
a week after the election, Trump was watching TV and declared, “Can you believe
I lost to this f—ing guy?” Cassidy Hutchinson testified that Mark Meadows—who,
heh, is cooperating
with Jack Smith—told her that John Ratcliffe said, “I’ve had a few
conversations with the president where he acknowledged he’s lost. He hasn’t
acknowledged that he wants to concede, but he acknowledges that he lost the
election.”
Okay, you might say that’s all hearsay. Fine. Here’s
Trump saying straight to camera that “I didn’t win the election” in a
conversation with some historians.
Again, this is hardly all of the evidence we have. And
it’s surely not all of the evidence that Smith and Willis have. If Meadows or
Bannon—never mind whoever else they’ll get to testify—tells the jury, “Trump
knew he lost,” we know people will say they’re lying. But will jurors believe
that? I doubt it.
For these and many other reasons, I think Trump is
actually guilty, not just of lying but of knowingly trying to steal the
election. I
thought it was obvious at the time. It’s even more obvious now. Just today
Tom Joscelyn points to
this new CNN
report that Kenneth Chesebro, the point-man on the fake electors
stuff, was hanging out with Alex Jones on January 6. Read Tom’s thread on how
this raises the possibility—or likelihood—that there was a lot more White House
coordination with the violent Stop the Steal rioters.
Presumed what now?
But let’s get out of the legal tick-tock stuff. The other
day, Mike Pence said that Trump enjoys “the presumption of innocence.” And as a
legal matter that’s obviously true. The burden is on the state to prove the
case. Fair enough.
But innocence in a criminal context is different from
innocence as a moral or political matter. Let’s assume for argument’s sake that
prosecutors can’t prove that Trump violated specific criminal laws. That
doesn’t mean Trump is innocent of the charge he tried to steal an election he
knew he lost. As Andy McCarthy noted on The Remnant, we don’t have
a lot of criminal laws to cover Trump’s conduct because Congress and the courts
rightly wanted to keep criminal justice issues far away from elections. That’s
a fair point. It’s also true that it never occurred to anybody to come up with
criminal laws to cover this kind of situation because we naively assumed that
anyone who made it to the presidency wouldn’t be as morally and psychologically
disordered as Donald Trump. Bless our hearts.
But Pence himself, for all his laudable—or
cynical—respect for the presumption of innocence, routinely says that Trump
tried to violate the Constitution. Surely he doesn’t now think that just
because a criminal trial is underway, he can’t hold that position? Is he going
to recall all copies of his book? If he’s asked at the Iowa State Fair about
why he “betrayed” Trump, is he going to say, “I can’t answer that because
there’s a criminal trial underway”?
Or consider many of the Republicans who voted against
impeachment. A handful said they were voting against impeachment because Trump
did nothing wrong. But more of them hid behind an argument that impeaching a
private citizen was unconstitutional. I disagree with that argument—as it
pertained to Trump—but we don’t have time to get into all that.
Republican Senate Majority Leader Mitch McConnell said on
the Senate floor, “Former President Trump’s actions that preceded the riot were
a disgraceful, disgraceful dereliction of duty. … There’s no question—none—that
President Trump is practically and morally responsible for provoking the
events of the day.”
John Thune said, “My vote to acquit should not be viewed
as exoneration for his conduct on January 6, 2021, or in the days and
weeks leading up to it. What former President Trump did to undermine faith
in our election system and disrupt the peaceful transfer of power is
inexcusable.” Even Sen. Mike Lee said,
“No one can condone the horrific violence that occurred on January 6, 2021–or
President Trump’s words, actions, and omissions on that day. I certainly
do not.”
Steve Daines said that
he voted against conviction because “the trial was unconstitutional.” But he
added, “I reject the notion that Vice President Pence had the
constitutional authority to overturn the election on January 6. It’s simply not
true. Vice President Pence faithfully upheld his oath of office and certified
the election.”
And then there’s Lindsey Graham.
His statement on
his vote was full of legalistic and partisan jargon. But this was after his
craven about-face. On the evening of January 6, Graham gave an impassioned
speech insisting he was done with Trump, “All I can say is count me
out. Enough is enough.” Graham also went to extraordinary rhetorical lengths
siding with Mike Pence and the U.S. Constitution:
“To the conservatives who believe
in the Constitution, now’s your chance to stand up and be counted. Originalism,
count me in. It means what it says. So Mike, Mr. Vice President, just hang in
there. They said, ‘We can count on Mike.’ All of us can count on the vice president.
You’re going to do the right thing.
In short, the issue of his criminal guilt is separate
from the broader question of his moral and historic culpability. And there’s no
reason to cling to the presumption of innocence on this score. He’s just so, so,
so guilty. By all means, use “alleged” when discussing criminal enterprise. But
there’s no reason to use “alleged” when talking about his unconstitutional and
immoral enterprise.
I get the argument that the criminal justice system
shouldn’t be contorted just to “get Trump”—i.e. hold him accountable for his
indefensible but possibly not criminal behavior. But with the exception of the
Bragg indictment, I don’t think that’s happening. (It’s certainly not happening
in the documents case. He’s just obviously, indisputably guilty there.) And if
Trump is convicted for his clearly unconstitutional and possibly criminal
scheme, I will not shed a single tear. It is his actions that have invited all
of his problems. He is the poster child of “f-ck around and find out.” And if
bad precedents are set, he will be the primary author of those precedents, not
Jack Smith, Merrick Garland, or Joe Biden.
Conservatives used to understand the distinctions between
contemptible and indefensible behavior and legal or constitutional questions.
We used to say all the time that just because something is legal or
constitutional that doesn’t mean it’s right. We used to say,
“Who are you to judge?” is a cop out. Now, it’s an all-purpose defense of bad
acts from shtupping porn stars to rioting.
Large swaths of the right have succumbed to the moral
relativism and postmodern gobbledygook they once mocked and decried. They don’t
use the jargon, but the jargon is written on their hearts.
We used to scorn ideas that privileged “personal truths”
over objective reality. But now thanks to the need to bend every standard to
fit Trump’s crooked character, many on the right subscribe to the idea that
“perception is reality” and “the personal is political.” If the system, the
rules, norms, laws, hinder Trump, then that’s the stuff that needs to go. It’s
not just because the new right swamps are full of Pepe frogs croaking
about how conservatives should do whatever
is necessary to win. The frogs are just hitching a ride on the back of
the Trumpian alligator. The real problem is that critical
Trump theory is mainstream now.
A piece in the The
New Yorker about the DeSantis campaign found that 70 percent of
Republican focus group participants agreed that COVID lockdowns in 2020 were
bad. But when the moderator asked if “Trump’s COVID lockdowns” were bad, 70
percent disagreed.
It’s because of cultish lunacy like this, I’m sure that
even if there was a videotape of Trump saying, “If I’m going to stay in office,
we have to pretend I didn’t actually lose, even though we all know I did” his
defenders will simply switch gears and say “Good! I’m glad he tried to steal
the election. At least he’s a fighter!” Of course, this would prove he wasn’t
man enough to win the fight. But never mind.
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