The most political indictment
Byron York
THE MOST POLITICAL INDICTMENT. Special counsel Jack Smith’s indictment of former President Donald Trump covering the 2020 election and Jan. 6 is Trump’s third indictment, after the March 30 indictment from Manhattan District Attorney Alvin Bragg concerning hush money in the 2016 campaign and the June 8 indictment from Smith concerning the classified documents affair. Now, after the new federal charges, one more indictment is still expected, this one concerning the 2020 election from Fulton County, Georgia, District Attorney Fani Willis.
Willis’s indictment could come at any time. It seems likely that by the first Republican presidential debate, on Aug. 23 in Milwaukee, Trump will be facing four separate indictments, two federal and two local.
One notable point: Three of the four indictments originated in elections. The Manhattan indictment alleges that Trump falsified business records to cover up money paid during the 2016 campaign to a porn star, Stormy Daniels, to keep her quiet about an old sexual encounter. The records charge is a misdemeanor. Bragg has promised an additional charge to raise the indictment to a felony but has not revealed what that additional charge is.
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Bragg is an elected Democrat who campaigned for his current office by promising to hold Trump “accountable.” The Trump indictment is as much of a campaign promise kept as an actual case against the former president. Many observers, and not just Republicans, believe the indictment is the weakest of all those leveled against Trump so far. And it is intensely political, exaggerating its charges to make a broad statement about Trump’s 2016 campaign.
Here is how a Washington Post analysis put it: “Bragg … accuses Donald Trump of engaging in a wide-reaching, more than two-year scheme to illegally influence the 2016 presidential election by suppressing potentially negative information about himself.” But then the Washington Post stuck a pin in Bragg’s balloon: “But the criminal charges detailed in the grand jury indictment against Trump are narrower.” Bragg’s indictment is big on political motivation and little on actual charges.
So that is one political indictment against Trump. The second indictment, the federal classified documents case, is not political in the same way. Trump’s defenders would say it was politically motivated or that the timing of it was politically motivated, but the subject matter was the accusation that Trump illegally kept national defense material after he left office. It is not about an election.
Now we have Smith’s 2020/Jan. 6 indictment, and it could not be more political. Covering the period immediately after the 2020 election through Jan. 6, Smith’s indictment is a rehash of the Jan. 6 committee report in indictment form. The committee, of course, was one of the most one-sided exercises ever to take place on Capitol Hill, with all its members marching in lockstep under the direction of a Republican Trump antagonist, then-Rep. Liz Cheney. (The chairman of the committee, of course, was Rep. Bennie Thompson (D-MS), but he simply wasn’t calling the shots. This week, the New York Times’s Maggie Haberman referred to the Jan. 6 committee as “run by Liz Cheney and some of her colleagues,” which was an entirely accurate description.)
The new Smith indictment targets political speech and characterizes it as criminal activity. “You don’t have to be a defender of Donald Trump to worry about where this will lead,” wrote the Wall Street Journal editorial board. “It makes any future election challenges, however valid, legally vulnerable to a partisan prosecutor.”
Of course, the role of “partisan prosecutor” is being played by Jack Smith. And conservatives and Republicans of all stripes have condemned the indictment. “This indictment shouldn’t stand,” wrote the editors of National Review. Those editors have called Trump’s actions around Jan. 6 “appalling” and “impeachable,” but they stop short at calling them criminal. “Mendacious rhetoric in seeking to retain political office is damnable — and, again, impeachable — but it’s not criminal fraud,” they wrote. Addressing Smith’s charge of Trump’s alleged obstruction of an official proceeding, the editors added, “The concept of corruption is meant to reach clearly criminal conduct, such as evidence manipulation or witness tampering. It has never been understood to reach wrong-headed legal theories.”
Another voice in the conservative world, Sen. Tom Cotton (R-AR), actually helped stop Trump’s effort to decertify the 2020 election results. Concerning the indictment, he tweeted on Wednesday, “Every time a Republican won the presidency this century, Democrats tried to stop the certification. Yet none of them faced criminal charges over what is obviously First Amendment protected activity.” Cotton clearly did not support what Trump was trying to do on Jan. 6. But he also believes that it was not criminal, as Smith alleges.
One interesting note is that there are those on the Left who are also criticizing the new indictment, not for its content so much as its timing. The short version is that Jan. 6 was 2 1/2 years ago. The Justice Department has been investigating ever since. Yet Smith was not appointed until Nov. 18, 2022. And now it has taken until Aug. 1, 2023, for an indictment, assuring that the case will be a constant presence during the 2024 presidential election.
Meanwhile, the Jan. 6 committee, which did most of the work Smith presents in the indictment, was gathering the information a year ago. And that is what MSNBC’s Chris Hayes complained about in coverage Tuesday night. “We sat here one year ago, at this table, and we watched 85% of the facts present here [in the indictment] … laid out before the nation.” But the indictment has only come out now and “we’re in a tighter space,” Hayes said. “This makes me think that the year when there was apparently not very much happening at the Department of Justice about a criminal conspiracy that happened on live television, as we all watched, was maybe not the greatest thing.”
Hayes was criticizing Attorney General Merrick Garland for acting slowly. Many Republicans look at it another way, noting that Garland did not act until a resulting indictment would be sure to run smack into the 2024 presidential campaign. There certainly is no debating the fact that, whatever the intention, the indictment released Tuesday will, in fact, run smack into the 2024 presidential campaign. It will influence the campaign, although in ways no one can predict right now.
So this is a political indictment. It is the most political indictment of the three against Trump so far. Of course, the Georgia indictment, when it comes, is guaranteed to be political, too. It will probably go over some of the same events as the new Smith indictment. A total of four Trump indictments, three of them baldly political. When Republicans complain that the prosecutions of Trump are political, this is what they mean.
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