By now, two months before the presidential election, we voters ought to have seen a verdict in the federal criminal case against the three-time Republican nominee accused of conspiring to overturn the result of the previous contest. (That’s a sentence I never thought I’d write.)
But there is no verdict against defendant Donald Trump, U.S. history’s biggest sore loser, thanks to the Supreme Court. Its right-wing super-majority — half of whom were selected by Trump, and two of whom should have recused themselves — dallied for half the year before issuing a surreal ruling in July granting the former president, and all future presidents, broad immunity from criminal liability for official acts, even for purportedly official acts intended to dynamite democracy’s foundation: free and fair elections.
Opinion Columnist
Jackie Calmes
Jackie Calmes brings a critical eye to the national political scene. She has decades of experience covering the White House and Congress.
So much for no person being above the law.
Thanks to special counsel Jack Smith, however, voters at least have a revised indictment against Trump in the Jan. 6 case. On Tuesday a new grand jury charged him with the same four conspiracy and obstruction crimes alleged in last year’s indictment, stripped of supporting material that might run afoul of the Supreme Court’s new tests for what is or isn’t an official act.
It’s far too late for a trial, and hence a verdict, before Nov. 5. And Trump’s team almost certainly will argue all the way back to the high court that Smith’s “superseding indictment” violates the justices’ immunity ruling.
Yet if nothing else, the retooled indictment is a useful refresher for those who’ve forgotten about, or become inured to, Trump’s antidemocratic outrages, the ones that made him the first American president to resist the peaceful transfer of power.
And more than that, the charges are a reminder about just why Trump wants to be president again: to avoid criminal liability and possibly prison. If reelected, he could thwart the rule of law, not uphold it as the oath of office demands. Trump could — would — make the Jan. 6 case go away, along with the separate federal charges against him for keeping classified documents. While he’s at it, he has promised to pardon hundreds of charged and convicted Jan. 6 insurrectionists, whom he grossly calls government “hostages.” He could also pardon himself, of course, for his alleged federal crimes (but not state charges).
After the grand jury action last week, former Justice Department official and MSNBC legal analyst Andrew Weissmann helpfully tweeted, “For those counting, FIVE separate grand juries (scores of citizens) have now found probable cause that Trump committed multiple felonies.”
Yes, for all of Trump’s daily lies that he’s being railroaded by “the Biden-Harris Regime” and its “weaponized” Justice Department, the facts are that many average Americans have heard evidence and decided against Trump. They’ve done so not only in those five grand juries, but also in several state trial juries that found him liable for sexual abuse and defamation, and guilty of 34 counts of falsifying business records to hide hush money payments to a porn star from voters before the 2016 election.
With that last judgment, Trump achieved another contemptible first: No other president has been convicted of felonies. Sentencing in the hush money case, in New York, was delayed until Sept. 18, thanks to the confusion spawned by the Supreme Court’s immunity decision, and Trump has asked for a further delay — past election day, natch. Judge Juan M. Merchan should proceed with the sentencing. Sure, Trump would cry foul. But all we’ve seen to date is excessive legal deference toward the lawless former president, his incessant whining about witch hunts notwithstanding.
Which brings us back to Smith’s overhauled Jan. 6 indictment, and its welcome reminder of Trump’s unprecedented power grab. The 36 pages are a maddening must-read for undecided voters, a ticktock of his falsehoods and scheming from the 2020 election through the violence of Jan. 6, 2021. Yet nearly four years later, instead of being held responsible, Trump is a candidate for reelection.
Smith strained to steer clear of Trump’s supposedly official acts, in keeping with the Supreme Court’s warped ruling. Out, for example, are accounts of his vile efforts to force Justice Department aides to lie about election fraud, as a pretext for lawsuits; they were his executive branch employees. But campaign advisors should be fair game for the prosecutors, and the indictment still recounts Trump’s refusals to accept their assertions and proof that he’d lost, that there was no fraud. Trump instead kept his aides spreading lies — “conspiracy s— beamed down from the mothership,” one wrote in an email cited in the indictment — and working on illegal slates of alternative state electors.
The document retains some details of Trump’s belittling pressure on Vice President Mike Pence. “You’re too honest,” the liar in chief once erupted, exasperated that Pence wouldn’t agree to throw out the electoral votes of pro-Biden battleground states during Congress’ Jan. 6 certification. And it includes Trump’s private and public haranguing of state officials to do his illegal bidding; they’re not feds, and presidents have no official role in states’ vote-counting.
Alas, for now all we have, still, are the charges, no trial and no verdict. But that fact defines the stakes for the 2024 election: A vote for Trump is a vote against his accountability. It’s really that simple.