We already have a mug shot.
Previously, I wrote about how the Justice Department could address Donald Trump’s conspiracy to overthrow the government in the face of intransigence from the Supreme Court. My suggestion is to proceed to trial against his co-conspirators. The delays in the federal trial against Donald Trump for his attempt to overthrow democracy, what I call the insurrection trial, create an opportunity for the Justice Department to impanel a new grand jury and seek charges against his co-conspirators.
While the ex-President claims he has presidential immunity from prosecution, that does not apply to his co-conspirators. They’re on their own. Presidential immunity does not cover other people who commit crimes, even if those crimes are on behalf of the President. Crimes are not official business.
Yes, they might claim immunity. But that’s a separate issue, and they would have to appeal that when they came to trial. Put them on trial and force them to face that issue. Make the court system tell us whether they are also immune from prosecution and why.
I’d love to see what excuse they try on us.
Last week, I suggested prosecuting the co-conspirators associated with the fake electors scheme. (Smith Should Pursue the Fraudulent Electors Co-Conspirators) That’s one class of criminals. This week, I’d like to talk about a second class of criminals, the co-conspirators associated with the election lie.
But first, a public service announcement.
Public Service Announcement
Stop assuming that the federal cases against Donald Trump will end if he’s elected. In the first place, the next President does not take office until 20 January 2025. That’s quite a long time from now.
In the second place, these are court cases. We should pressure the Justice Department to continue prosecution regardless of who wins. We should demand Jack Smith stay on as special counsel and continue his independent work. We should make it clear that he cannot be fired or influenced by politics.
Even if Donald Trump succeeds in firing him, we need to demand the courts continue the trials. The courts should order the Justice Department attorneys to stay on the case until there is a verdict. And if the courts don’t do that, then we need to appeal that decision right up to the Supreme Court. The American people are party to the insurrection case because one of the charges is that Donald Trump sought to take away our rights (Count 4: 18 USC § 241 Conspiracy Against Rights). In that sense, every American has standing to appeal.
These are not politically-motivated prosecutions. These are crime-motivated prosecutions.
So, let’s not just roll over on this concept, which is pervasive in the media. They say that, in their wildest dreams should Donald Trump get elected he can shut down these cases. I do not grant him the right to do that. He needs our permission, and I don’t plan to grant him that permission.
The Lying Liars
Above, I referred to these people as “criminals”. Yes, they are entitled to the presumption of innocence in a court of law. But this isn’t a court of law. This is a blog. Here, they aren’t entitled to the presumption of innocence. All publicly available information, including the indictment against their ring leader, indicates they are guilty of crimes, and in particular a crime against you, a conspiracy against your rights.
If any of these people want to be considered innocent, all they need to do is present admissible exculpatory evidence in court, and the public should consider it. But so far, all the evidence I’ve seen in the public domain is incriminating.
Many of the co-conspirators in the insurrection indictment spread the lie that Donald Trump won the 2020 presidential election.
A case could be made, as I suggested before, based on the fake electors scheme. But another case could be made on the broad attempt to deceive the American people that Donald Trump won the 2020 election, with the intent to disenfranchise voters and fraudulently raise money from the public. I’ve already covered his attempt to raise campaign funds through fraud in The Con Man. But that did not integrate the co-conspirators into the plot.
According to the indictment, some of the co-conspirators spread lies about the election. In particular, this includes:
Co-Conspirator 1 [Rudy Giuliani], an attorney who was willing to spread knowingly false claims and pursue strategies that the Defendant’s 2020 re-election campaign would not.
Co-Conspirator 3 [Sidney Powell], an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded “crazy.”
Co-Conspirator 4 [Jeffrey Clark], a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.
[p 20]
(When quoting from the indictment, Case 1:23-cr-00257-TSC, I have generally put the text in block quotes. I also generally substitute the well-known names of the co-conspirators in the text where they are referenced. This makes it easier to read and understand what the indictment is saying. All page references here are from The Trump Indictments: The Historic Charging Documents with Commentary by Melissa Murray & Andrew Weissmann.)
Media Participation
In addition to these people listed in the indictment, there are many others who could reasonably be part of this prosecution. For example, a number of people at Fox News regularly conveyed lies to the public about the outcome of the election. We know this because Fox News agreed to settle claims by Dominion Voting Systems about these lies. (See Dominion Voting Systems v. Fox News Network)
You are probably thinking, “But, but, the First Amendment!” Yeah. I’m a top supporter of freedom of the press. Let’s talk about that.
The purpose of a free press is to help our country maintain a democracy. Does lying about the outcome of an election serve that purpose? I don’t think so.
Even so, there should be great latitude for the media to say things to the public. Facts are not always clear. People can reasonably draw different conclusions from the same facts. You may well not agree with my conclusions.
But a vote count, especially one where the official outcome is well established, is not in a gray area. The outcome of the 2020 presidential election is very well-established and was from a few days after the polls closed. It was tested in the courts in many states. There were recounts and audits.
According to the indictment:
Senior staffers on the Defendant’s 2020 re-election campaign (“Defendant’s Campaign” or “Campaign”)—whose sole mission was the Defendant’s reelection—told the Defendant on November 7, 2020, that he had only a five to ten percent chance of prevailing in the election, and that success was contingent on the Defendant winning ongoing vote counts or litigation in Arizona, Georgia, and Wisconsin. Within a week of that assessment, the Defendant lost in Arizona—meaning he had lost the election.
[p 27]
In the case of Fox News, their vote analysis center called the election for Joseph Biden on the night of the election. There is no question that the people at Fox News knew that Biden won, and that the people in the Trump campaign knew they lost. It’s quite clear that anyone after election night claiming Donald Trump won the election was just plain lying to the public. The question is: Were they part of the conspiracy? Given the evidence of the widespread nature of the conspiracy, it seems probable that they were.
Despite all that, Tucker Carlson and others went on national television and told the public there was doubt and that electronic systems used to count votes were rigged.
Are they guilty? Should they be included in an indictment? Is their participation in the lie any less damaging than those of Rudy Giuliani, Sidney Powell, or Jeffrey Clark (Co-Conspirators 1, 3, and 4) or more damaging because they were part of the media establishment? Perhaps this should be established by a criminal trial.
But let’s say we give them a pass as criminal defendants here because they were part of the media at the time and should be allowed to lie to maintain freedom of the press. That doesn’t mean they can’t be witnesses. And what about their activities outside their role as “journalists”? Did they play a part in spreading the lie independent of their role in the media? Their pronouncements in the media strongly suggest they were part of the conspiracy, so they probably took actions outside their jobs to further these crimes.
Members of Congress
Also, what of the politicians? In her book, Oath and Honor: A Memoir and a Warning, Liz Cheney writes that Mike Johnson was one of the prime organizers of the insurrection within the House. To the degree he spread the lie about the election to others he is one of the co-conspirators in perpetrating a fraud on the American people.
You could be thinking, “But, but, they’re members of Congress! Don’t they get some kind of immunity for that?”
Yes, when they are conducting official business. They can’t be questioned other than in Congress for anything they say there and they can’t be arrested for regular crimes. (The exceptions, according to Article I, Section 6, are “Treason, Felony and Breach of the Peace”, but here’s the rub: Insurrection is treason.)
This isn’t something they were just saying. They were taking actions, lining up people to deny the will of the people. That’s not an official duty of anyone who has taken an oath to the Constitution. All the public information available to us suggests they were part of the conspiracy to take away our rights.
Even so, let’s say we give them a pass as criminal defendants here because they were members of Congress at the time. Congress should do something about them. Congress should expel them, for example.
However, many of these people were still witnesses, and they should be required to give sworn testimony. And for those activities outside their governmental role? Should they have any immunity from prosecution? For treason against the Constitution of the United States? They should be subject to arrest and trial.
As I’ve proposed before (Illegally Speaking), Mike Johnson is disqualified by the Fourteenth Amendment from holding the office of Speaker of the House. A nice criminal trial for him, were he to be acquitted, would clear his name and show he could be Speaker. So, perhaps a criminal trial would work out for him.
Regardless, these people should be under intense public scrutiny.
Public Figures
So, we could exclude members of the media and members of Congress from this prosecution, but what about other public figures who seriously pushed the lie to the public? Steve Bannon, for example. As a public figure and a pundit, not part of the news media, I think he’s a prime target for this case.
There are also a number of organizations, such as the Heritage Foundation, which is currently backing a plan to undermine democracy. Their president, Kevin Roberts, for example, is on record that he does not believe President Biden won the 2020 election. (See here.)
Powerful people in the U.S. who have been pushing the election lie should be considered for prosecution, because this was one big conspiracy to defraud the American people.
Our Case
Just to keep things streamlined, however, the Justice Department should probably stick to the three co-conspirators listed in the insurrection indictment. What does the indictment say about them? According to the “Manner and Means” section:
a. The Defendant and co-conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant. That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant.
c. The Defendant and co-conspirators attempted to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome; that sought to advance the Defendant’s fraudulent elector plan by using the Justice Department’s authority to falsely present the fraudulent electors as a valid alternative to the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states’ legislatures to convene to create the opportunity to choose the fraudulent electors over the legitimate electors.
d. [When attempts to get the Vice President to fraudulently alter the election results failed,] on the morning of January 6, the Defendant and co-conspirators repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.
e. [After the attack on the Capitol began,] the Defendant and co-conspirators exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims.
[pp 22-25]
In this section, there are numerous instances of co-conspirators making false claims about the election. Each of these claims was in furtherance of crimes, including obstruction of government proceedings and attempting to deny the public their right to elect the President of their choice.
The indictment also says:
11. The Defendant, his co-conspirators, and their agents made knowingly false claims that there had been outcome-determinative fraud in the 2020 presidential election. These prolific lies about election fraud included dozens of specific claims that there had been substantial fraud in certain states, such as that large number of dead, non-resident, non-citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes for the Defendant to votes for Biden. These claims were false, and the Defendant knew that they were false.
[pp 25-26]
Sections 13-52 detail numerous instances of co-conspirators lying to public officials and others about the election, endeavoring to induce them to take criminal actions. This included pressure on officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin. (See pages 29-44.)
Co-Conspirator 4 is thought to be Jeffrey Clark (who is the only person in the world to fit the description in the indictment). According to the indictment, Clark sent a draft letter full of lies about the election to his bosses at Justice, including these false claims:
a. The Justice Department had “identified significant concerns that may have impacted the outcome of the election in multiple States[.]”
b. [His] letter sought to advance the Defendant’s fraudulent elector plan by using the authority of the Justice Department to falsely present the fraudulent electors as a valid alternative to the legitimate electors.
c. The Justice Department urged that the state legislature convene a special legislative session to create the opportunity to, among other things, choose the fraudulent electors over the legitimate electors.
[p 53]
These were all knowingly false claims, and this attempt by Jeffrey Clark was an attempt to use fraud to get the states to illegally overturn the will of the people in those states. Clark wanted his bosses to pass on this letter to the states to try to get them to change their electoral vote counts.
Summary
As we can see in the indictment, these three co-conspirators were intimately involved in convincing the susceptible public that Donald Trump, not Joe Biden, won in November 2020, even though he and they all knew this was false. They lied to the public. They did so in furtherance of other crimes, including stripping the public of its right to elect the President, as well as obstructing the operation of government.
It’s time for these people to all meet in court and defend themselves. The evidence presented in the insurrection indictment is overwhelming. Unless they have other evidence to present, it’s clear they will be found guilty. We have sufficient evidence that they are probably guilty of these crimes, and a grand jury should get that evidence.
The Justice Department needs to immediately impanel that grand jury and seek a separate indictment against these three co-conspirators.
