NYT: What Makes Jack Smith’s New Trump Indictment So Smart
Mr. Smith has avoided some potential land mines that could be lurking in other charges. One charge that was not included in the indictment falls under 18 U.S.C. Section 2383, which makes it a crime to incite, assist or engage in a rebellion or insurrection against the United States or to give aid and comfort to such an insurrection. This charge was part of the referral from the Jan. 6 committee.
It would have faced some potentially tricky First Amendment issues, to the extent it would have relied on Mr. Trump’s speech at the Ellipse on Jan. 6 to allege that he incited the riot. I believe those issues could be overcome, but the free speech battles over that charge would have been time-consuming and distracting because the speech could be easily characterized as a political rally. Seditious conspiracy under 18 U.S.C. Section 2384 is also absent. A number of Proud Boys and Oath Keepers have been convicted of violating that law, which prohibits conspiracies to overthrow the government. But violating the statute requires the use of force. Conviction presumably would require proof that Mr. Trump intended the Capitol riot to take place and that it was not just a political protest that got out of hand. That proof may be there, but the issue could easily become a major distraction.
A conspiracy requires two or more people who agree to participate. This indictment lists but does not yet charge or formally identify six Trump co-conspirators. Mr. Smith clearly has enough evidence to charge those unindicted co-conspirators but has chosen not to — for now. This, too, is a smart tactical decision. Proceeding against Mr. Trump alone streamlines the case and gives Mr. Smith the best chance for a trial to be held and concluded before the 2024 presidential election. It’s possible some of the unindicted co-conspirators will cut a deal and testify for the prosecution. If not, there is plenty of time to charge them later.
Wapo: 4 things that stand out from the Trump Jan. 6 indictment
It’s a question that has long stalked Trump: whether he knew that the false things he said were false. It’s also a threshold question when it comes to the case ahead, given that Trump’s defense will apparently rely on the idea that he somehow believed his claims about a stolen election and thus didn’t act corruptly.
Smith is unambiguous: Trump knew better. “The Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won,” the indictment says. “These claims were false, and the Defendant knew that they were false.” Smith cites examples — many previously known — of those around Trump directly informing him that his claims were false and his schemes dubious. They included Vice President Mike Pence, top Justice Department officials, top White House attorneys and campaign staff members, key state legislators and officials, and state and federal courts.
The indictment cites examples of Trump’s being informed that specific claims were false and then proceeding to lodge them anyway. Smith makes a point of isolating a single claim from each of five key states — Arizona, Georgia, Michigan, Nevada and Pennsylvania — each time punctuating the example by saying that Trump “repeated his knowingly false claim” on Jan. 6 itself.
If the DOJ was weaponizing its investigative powers for political purposes, surely it would not be giving Trump the fodder to gain media attention and raise enormous sums for his 2024 presidential campaign. This isn’t about politics. It’s about accountability, even if holding Trump accountable actually could help his political campaign.
Trump’s joint fundraising committee reported bringing in more than $35 million in the second quarter of 2023 — the quarter during which Trump was indicted by both Smith (in the classified documents case) and Manhattan District Attorney Alvin Bragg (in the hush money case). This is up almost 100% from the $18.8 million he brought in during the first quarter of the year, and reflected a massive amount of fundraising around the legal cases. It doesn’t take a political genius to see that the DOJ’s investigations are in some ways entirely against the political interests of Joe Biden. And that is one of the commendable things about the investigations and indictments. They are not political.
The DOJ does not make prosecutorial decisions based on whether those decisions will benefit the president politically. It makes decisions according to DOJ’s principles of prosecution, which require prosecutors to consider whether “substantial federal interests” support a prosecution and which are designed to ensure the “fair, evenhanded administration of federal criminal laws.” In Smith's 2020 election probe, the federal interest is obvious . . .
The National Review flat-out lies. It says:
But National Review is lying to you about the Supreme Court and about what’s charged here. The Special Counsel charged Trump with defrauding the United States under Section 371. The Supreme Court and lower courts have repeatedly and specifically ruled that Section 371 doesn’t require a scheme to take money or property. National Review is referring to the latest in a line of cases interpreting a completely different statute, the wire fraud statute, that includes a “money or property” requirement in its text...
Justice Thomas, in the 2023 case to which National Review alludes, expressly relies on that language to find that the wire fraud statute requires a scheme to take money or (as traditionally defined) property. He does not even mention Section 371, which does not include the “money or property” language and which has a long history of Supreme Court and lower court cases holding that the object of the fraud need not be money or property, but can be interfering with government function. That’s not just misleading; it’s a flat-out lie about the law.
Mr. Smith has avoided some potential land mines that could be lurking in other charges. One charge that was not included in the indictment falls under 18 U.S.C. Section 2383, which makes it a crime to incite, assist or engage in a rebellion or insurrection against the United States or to give aid and comfort to such an insurrection. This charge was part of the referral from the Jan. 6 committee.
It would have faced some potentially tricky First Amendment issues, to the extent it would have relied on Mr. Trump’s speech at the Ellipse on Jan. 6 to allege that he incited the riot. I believe those issues could be overcome, but the free speech battles over that charge would have been time-consuming and distracting because the speech could be easily characterized as a political rally. Seditious conspiracy under 18 U.S.C. Section 2384 is also absent. A number of Proud Boys and Oath Keepers have been convicted of violating that law, which prohibits conspiracies to overthrow the government. But violating the statute requires the use of force. Conviction presumably would require proof that Mr. Trump intended the Capitol riot to take place and that it was not just a political protest that got out of hand. That proof may be there, but the issue could easily become a major distraction.
A conspiracy requires two or more people who agree to participate. This indictment lists but does not yet charge or formally identify six Trump co-conspirators. Mr. Smith clearly has enough evidence to charge those unindicted co-conspirators but has chosen not to — for now. This, too, is a smart tactical decision. Proceeding against Mr. Trump alone streamlines the case and gives Mr. Smith the best chance for a trial to be held and concluded before the 2024 presidential election. It’s possible some of the unindicted co-conspirators will cut a deal and testify for the prosecution. If not, there is plenty of time to charge them later.
Wapo: 4 things that stand out from the Trump Jan. 6 indictment
It’s a question that has long stalked Trump: whether he knew that the false things he said were false. It’s also a threshold question when it comes to the case ahead, given that Trump’s defense will apparently rely on the idea that he somehow believed his claims about a stolen election and thus didn’t act corruptly.
Smith is unambiguous: Trump knew better. “The Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won,” the indictment says. “These claims were false, and the Defendant knew that they were false.” Smith cites examples — many previously known — of those around Trump directly informing him that his claims were false and his schemes dubious. They included Vice President Mike Pence, top Justice Department officials, top White House attorneys and campaign staff members, key state legislators and officials, and state and federal courts.
The indictment cites examples of Trump’s being informed that specific claims were false and then proceeding to lodge them anyway. Smith makes a point of isolating a single claim from each of five key states — Arizona, Georgia, Michigan, Nevada and Pennsylvania — each time punctuating the example by saying that Trump “repeated his knowingly false claim” on Jan. 6 itself.
MSNBC: Trump's 2020 election indictment is not about politics. It’s about accountability.
If the DOJ was weaponizing its investigative powers for political purposes, surely it would not be giving Trump the fodder to gain media attention and raise enormous sums for his 2024 presidential campaign. This isn’t about politics. It’s about accountability, even if holding Trump accountable actually could help his political campaign.
Trump’s joint fundraising committee reported bringing in more than $35 million in the second quarter of 2023 — the quarter during which Trump was indicted by both Smith (in the classified documents case) and Manhattan District Attorney Alvin Bragg (in the hush money case). This is up almost 100% from the $18.8 million he brought in during the first quarter of the year, and reflected a massive amount of fundraising around the legal cases. It doesn’t take a political genius to see that the DOJ’s investigations are in some ways entirely against the political interests of Joe Biden. And that is one of the commendable things about the investigations and indictments. They are not political.
The DOJ does not make prosecutorial decisions based on whether those decisions will benefit the president politically. It makes decisions according to DOJ’s principles of prosecution, which require prosecutors to consider whether “substantial federal interests” support a prosecution and which are designed to ensure the “fair, evenhanded administration of federal criminal laws.” In Smith's 2020 election probe, the federal interest is obvious . . .
People Are Lying To You About The Trump Indictment. National Review Is Lying, For Instance. There Will Be More. Keep An Eye Out.
The National Review flat-out lies. It says:
But National Review is lying to you about the Supreme Court and about what’s charged here. The Special Counsel charged Trump with defrauding the United States under Section 371. The Supreme Court and lower courts have repeatedly and specifically ruled that Section 371 doesn’t require a scheme to take money or property. National Review is referring to the latest in a line of cases interpreting a completely different statute, the wire fraud statute, that includes a “money or property” requirement in its text...
Justice Thomas, in the 2023 case to which National Review alludes, expressly relies on that language to find that the wire fraud statute requires a scheme to take money or (as traditionally defined) property. He does not even mention Section 371, which does not include the “money or property” language and which has a long history of Supreme Court and lower court cases holding that the object of the fraud need not be money or property, but can be interfering with government function. That’s not just misleading; it’s a flat-out lie about the law.
