On August 1, 2023, a federal grand jury indicted former President Donald J. Trump for conspiring to prevent Vice President Mike Pence, through a blizzard of knowing “Stop the Steal” lies, threats, intimidation, and mob violence, from counting judicially vetted state certified electoral votes as stipulated by the Electoral Count Act and the Twelfth Amendment to the United States Constitution.
The January 6 indictment is solid as granite. All the incriminating testimony and evidence is from the former president’s appointees or political supporters, for example, former Attorney General William Barr and former White House Counsel Pat Cipollone. Democrats are nowhere to be seen. Even lavishly compensated private investigators, hired by Trump himself to unearth electoral fraud, came up empty handed.
The knockout is from former Vice President Pence. He testified in various formulations that on January 6, 2021, Trump demanded that he “choose between [Trump] and the Constitution.” Trump’s demand showed his knowledge that he was haranguing the vice president to do something contrary to the Constitution. Trump was not presenting legal arguments in favor of an alternative constitutional understanding. Trump, a few days earlier, had similarly assailed Pence for being “too honest” in denying any constitutional foundation for a lawsuit claiming the vice president possessed the authority to reject state-certified electoral votes.
The uniform advice Trump received from his own lawyers was that the vice president’s constitutional role in “counting” state-certified electoral votes was ministerial. He was not empowered to question their validity. That had been the universal understanding for more than two centuries since the Twelfth Amendment was ratified in 1804. Even one of Trump’s co-conspirators, lawyer John Eastman, conceded Trump’s zany reading of the amendment would not command a single vote in the United States Supreme Court. J. Michael Luttig, former United States Court of Appeals Judge for the Fourth Circuit, a conservative jurist in the mold of the late Justice Antonin Scalia, scoffed at the idea of any role for the vice president in counting state-certified electoral votes other than a ministerial one.
Trump’s private lawyers like Rudy Giuliani, Sidney Powell, Jenna Ellis, and John Eastman face professional or court discipline for their “Stop the Steal” lies. Powell maintained in a defamation lawsuit that “no reasonable person” would have believed her lies were facts.
Historical practice and the Twelfth Amendment’s plain text are reinforced by the four-centuries-old Anglo-American axiom that a man cannot be a judge in his own case. Thus, former Vice President Al Gore lacked power to second-guess the state-certified electoral votes for Republican George W. Bush in the 2000 presidential election in which Gore was Bush’s Democratic opponent. Pence, who was Trump’s running mate, would have faced a similar political conflict if he decided on the validity of state-certified electoral votes cast in 2020.
Trump’s incorrigibly criminal, extraconstitutional state of mind was betrayed by his alarming proclamation on July 23, 2019, hoping to undo the American Revolution: “Then I have Article 2, where I have the right to do anything I want as president,” That is, the rule of law is no longer king, the king is law. Willful ignorance or stupidity is no defense to criminal action.
Any free speech defense mounted by Trump would be DOA. There is no First Amendment right to unleash a tsunami of “Stop the Steal” lies with the ulterior criminal motive of shipwrecking the peaceful transfer of presidential power under the Twelfth Amendment by intimidating the vice president from counting state-certified electoral votes that had survived 61 judicial challenges. Trump nearly succeeded. The indictment states that on January 6, 2021, “at 2: 25 pm, the United States Secret Service was forced to evacuate the vice president to a secure location [in the Capitol]. [There], throughout the afternoon, members of the crowd chanted, ‘Hang Mike Pence!’; ‘Where is Pence? Bring him out!’; and ‘Traitor Pence!’”
Free speech icon Justice Louis D. Brandies confirmed in a concurring opinion in Whitney v. California (1927) that the First Amendment is undisturbed by the prosecution of speech calculated to occasion imminent serious harm. It is difficult to conceive of any greater injury to a democracy founded on the consent of the governed than frustrating the peaceful transfer of presidential power in accord with judicially vetted and politically certified popular votes.
The probability that Trump will testify on his own behalf is zero—too great a risk of perjury. A former Trump lawyer, John Dowd, reportedly was convinced that his client was an inveterate liar.
Even if Trump is convicted of January 6 offenses alleged in the indictment before presidential balloting in November 2024, he could still be a candidate for the presidency. Socialist Eugene Debs, while imprisoned for making anti-war speeches and allegedly violating the Espionage Act, ran for president in 1920 and attracted one million votes. Debs’ sentence was commuted by President Warren G. Harding, who invited him to the White House saying, “I have heard so damned much about you, Mr. Debs, that I am now very glad to meet you personally.”
The sole criminal prohibition that would disqualify Trump from the ballot, under Section 3 of the Fourteenth Amendment, is “insurrection,” made criminal by 18 United States Code Section 2383.
Section 3 categorically disqualifies from public office at any level of government any official who, after having taken an oath to support the Constitution of the United States, engages in “insurrection” against it. Among other things, insurrection means seeking by force, violence, or otherwise to frustrate the ability of the United States to enforce the Constitution or laws. The narrative of the January 6 indictment makes clear that Trump conspired and directly engaged in insurrection against the Constitution on January 6 by attempting to obstruct the enforcement of the Twelfth Amendment and Electoral Count Act.
The House Select Committee to Investigate the January 6 Attack on the United States Capitol made a criminal referral to the Department of Justice recommending prosecution of Trump for assisting or aiding the January 6 insurrection. Trump was impeached by the U.S. House of Representatives for inciting insurrection and a majority of U.S. Senators voted to convict (but short of the two-thirds majority constitutionally required). The Department of Justice has secured multiple convictions against Trump’s January 6 mob for “seditious conspiracy” under 18 U.S.C. 2384, whose elements of proof are virtually indistinguishable from insurrection.
Why then did the indictment omit an insurrection count to disqualify Trump for 2024? And was Special Counsel Jack Smith or Attorney General Merrick Garland the de facto or de jure decider? Under Department of Justice special counsel regulations, the latter is empowered to overrule the former in narrow circumstances.
Without exhausting all the hypotheses, Democrats might wish to see Trump nominated as the Republican presidential candidate in 2024 because they believe he is a sure loser against President Joe Biden and would convulse the Republican Party. Placing that political calculation above the Constitution, i.e., Section 3 of the Fourteenth Amendment, we submit, would be too dismaying for words.
Alternatively, Democrats could believe that disqualifying Trump from the 2024 campaign would taint the outcome in the minds of the considerable number of his deceived supporters and compound political polarization. But to bow to such political calculations would erode the rule of law. The sole loyalty of federal officials from the highest to the lowest is to the Constitution, period.
Perhaps Garland and Smith had non-political legal rationales for their omission. If so, they have not explained it publicly—even though nothing forbids them from candor.
We urge Special Counsel Jack Smith to unilaterally, or with the approval of Attorney General Garland, return to the federal grand jury in Washington, D.C., and ask for a superseding indictment adding a count for insurrection in violation of Section 2383. Not a single word in the factual narrative of the preceding indictment need be changed.
The future of our Republic is too important to be left to shortchanging the fullest legal case against Trump.
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