Trump’s Unconstitutional Enterprise
Dear Reader (Particularly those of you who put the oo mau mau back into my smile, child),
Let’s start with a rare G-File legal explainer.
In the wake of the Georgia indictments, a lot of people didn’t understand that “predicate acts” in a racketeering case don’t have to be illegal by themselves. Let’s say, to expand on David and Sarah’s analogy, the staff of The Dispatch decides to get into the kidnapping business. At an “editorial” meeting I bark out orders: “Okay Drucker, you get the duct tape. Isgur, you find us a good nondescript getaway car. Hayes, just keep eating cheese curds until we find something for you to do.”
Drucker gets the duct tape, Sarah gets a sweet AMC Pacer with a tricked-out engine. Hayes provides encouragement. And then we head out to kidnap George Will and hold him for ransom. (“He’s a national treasure! People will pay for his release!”)
When we’re inevitably caught and charged, I won’t have many defenders. But Isgur and Drucker fans might say, “Oh, so buying a car or duct tape is a crime now!? Come on!”
Buying such items isn’t a crime, but buying them in furtherance of a crime is evidence that you committed the crime. Similarly, using my instructions—probably secretly recorded by Andrew Egger—as evidence against me in court would not be a violation of my free speech rights. Because while you’re free to say whatever you want in this country, if you say things as part of a criminal enterprise (“Kill that guy,” “Rip off those mattress tags!” etc.), it can be used against you.
With that bit of legal pedantry out of the way, let’s get to the point. There are a lot of acts in the Georgia indictment that are not illegal in their own right but are part of a broader criminal scheme that is—allegedly—illegal. So, Trump’s tweets and speeches are not crimes in themselves, but they are evidence toward proving the larger alleged “criminal enterprise.”
So, let’s talk about Trump’s criminal enterprise.
Specifically, let’s pick up from last week. As I noted, the central claim Trump’s lawyers and apologists all cling to is that Trump sincerely believed he won. As I wrote, “The best defense that Trump and his praetorians can come up with is that he was so delusional, so narcissistically deranged, that he couldn’t let go of the belief that he won. And this is their defense.” I’m under no illusions that I can shake many of these people off of this belief. But fortunately, the people who need to be convinced are not trolls, flacks, hacks, groupies, and highly compensated—when Trump pays them—lawyers. The relevant people are called “jurors.”
How might an actual juror look at the claim Trump didn’t know he lost? I’ll skip all of the points I made before about him ignoring what his White House counsel, attorney general, vice president, campaign manager, and private firms he hired, all told him.
The most interesting act out of the 126 acts laid out in the indictment is the first one. It reads:
On or about the 4th day of November 2020, DONALD JOHN TRUMP made a nationally televised speech falsely declaring victory in the 2020 presidential election. Approximately four days earlier, on or about October 31, 2020, DONALD JOHN TRUMP discussed a draft speech with unindicted co-conspirator Individual 1, whose identity is known to the Grand Jury, that falsely declared victory and falsely claimed voter fraud. The speech was an overt act in furtherance of the conspiracy.
The most significant claim here is that Trump always planned to cry, “Fraud!” if he lost regardless of the evidence. This is not a shocking revelation, given that he has a long history of preemptively saying that the only way he might lose anything is if his opponents cheated or rigged the game.
Rigged all the way down.
Lest you think I’m making that up, let’s review some examples.
For starters, even when Trump won in 2016, he still claimed he was cheated because he didn’t win the popular vote. “In addition to winning the Electoral College in a landslide,” he declared in 2016, “I won the popular vote if you deduct the millions of people who voted illegally.” His own commission for finding evidence of these illegal voters came up with bupkis.
Again, in 2016, he prepped the post-defeat spin. “The election is absolutely being rigged by the dishonest and distorted media pushing Crooked Hillary – but also at many polling places – SAD,” he tweeted in October 2016. At a Pennsylvania rally, he told the crowd that it’s “so important that you get out and vote. So important that you watch other communities because we don’t want this election stolen from us.”
Before that, he claimed the GOP rigged the primaries against him.
“First of all, it [the primary season] was rigged, and I’m afraid the election is going to be rigged. I have to be honest. Because I think my side was rigged. If I didn’t win by massive landslides—I mean, think of what we won in New York, Indiana, California 78 percent. That’s with other people in the race, but think of it.”
“Now we have one left, one left, one left,” Trump said, referring to his general election opponent, Hillary Clinton. “And in theory, in theory it should be the easiest, but it’s a rigged system. It’s a totally rigged system. The elections are rigged.”
He even claimed that Ted Cruz was one of the riggers: “Ted Cruz didn’t win Iowa, he stole it. That is why all of the polls were so wrong and why he got far more votes than anticipated. Bad!”
Okay, you get the point.
And you can be sure that his defenders will say that none of that is proof he was lying about the 2020 election. Heck, you could even argue it’s evidence of his state of mind. “See? This just proves he has a long history of sincerely believing convenient bullsh-t!” Fair enough. None of that stuff was criminal, but it does lay a foundation for his tendency to lie.
Moreover, there’s a difference between merely whining about make-believe stuff and actually doing things—and inducing others to do things—based on lies and other fraudulent claims. It’s the difference between saying you don’t have a date for the prom because your Canadian supermodel girlfriend has a photoshoot and forcing a Canadian supermodel at gunpoint to claim you spoiled her for other men. Okay, maybe not exactly, but you get the point.
The causal arrows.
But Trump’s bogus 2020 claims, starting on Election Night, were always framed as a response to actual events and evidence. He and his co-conspirators constantly, and falsely, claimed there was “overwhelming evidence” of fraud. They just couldn’t produce it. Indeed, pretty much all of those claims have been debunked—by investigations, audits, recounts, and courts. But if prosecutors can demonstrate that he planned to cry fraud no matter what if he lost, it would help demonstrate that he never actually cared about evidence.
More importantly, if he actually put plans into effect—issued orders, coordinated with his band of misfit enablers, etc.—to claim fraud when none existed, that would go a long way toward demonstrating his criminal intent. All of the Trumpists insisting that he “really thought he won” will still mouth this drivel, but whatever persuasive plausibility such claims have would probably evaporate in front of a jury if prosecutors could prove the causal arrows go:
Plan to Claim Fraud ➔ Lose the Election ➔ Claim Fraud ➔ Muster Forces to Act on the Lie.
Co-conspirator No. 1
The other interesting thing about Act 1: The date of October 31.
It didn’t get a lot of coverage, but last year Mother Jones obtained a tape of Steve Bannon explaining what Trump would do when he lost the election (people forget, but the campaign knew he was almost surely going to lose well before Election Day).
“What Trump’s gonna do is just declare victory. Right? He’s gonna declare victory. But that doesn’t mean he’s a winner,” Bannon said chuckling. “He’s just gonna say he’s a winner.”
Bannon goes on describing almost exactly what happened a few days later: “At 10 or 11 o’clock Trump’s gonna walk in the Oval, tweet out, ‘I’m the winner. Game over. Suck on that.’ If Trump’s losing by 10 points, he’s just going to say, ‘They stole it.’”
A spokesperson for Bannon told Mother Jones the tape wasn’t “news” because he’d said similar things on his War Room podcast. I’m not sure how exactly that’s a defense. But okay.
Still, it’s interesting that Bannon said all of this on October 31, the same date that Unindicted Co-Conspirator 1 talked to Trump about his plan to claim fraud on Election Day. Is Bannon unindicted Co-Conspirator 1? Hell if I know. If he is, that might mean he threw Trump under the bus, which would be fun. If he’s not, that means there’s more than one person who can corroborate that this was always the plan.
Then again, we already know that more than one person was involved in the plan. Just this week, a clip from a documentary surfaced showing Roger Stone laying out the plan two days before the election was called.
There’s plenty of additional evidence that Trump knew he lost, aside from all the people who told him he lost. His comms director testified that a week after the election, Trump was watching TV and declared, “Can you believe I lost to this f—ing guy?” Cassidy Hutchinson testified that Mark Meadows—who, heh, is cooperating with Jack Smith—told her that John Ratcliffe said, “I’ve had a few conversations with the president where he acknowledged he’s lost. He hasn’t acknowledged that he wants to concede, but he acknowledges that he lost the election.”
Okay, you might say that’s all hearsay. Fine. Here’s Trump saying straight to camera that “I didn’t win the election” in a conversation with some historians.
Again, this is hardly all of the evidence we have. And it’s surely not all of the evidence that Smith and Willis have. If Meadows or Bannon—never mind whoever else they’ll get to testify—tells the jury, “Trump knew he lost,” we know people will say they’re lying. But will jurors believe that? I doubt it.
For these and many other reasons, I think Trump is actually guilty, not just of lying but of knowingly trying to steal the election. I thought it was obvious at the time. It’s even more obvious now. Just today Tom Joscelyn points to this new CNN report that Kenneth Chesebro, the point-man on the fake electors stuff, was hanging out with Alex Jones on January 6. Read Tom’s thread on how this raises the possibility—or likelihood—that there was a lot more White House coordination with the violent Stop the Steal rioters.
Presumed what now?
But let’s get out of the legal tick-tock stuff. The other day, Mike Pence said that Trump enjoys “the presumption of innocence.” And as a legal matter that’s obviously true. The burden is on the state to prove the case. Fair enough.
But innocence in a criminal context is different from innocence as a moral or political matter. Let’s assume for argument’s sake that prosecutors can’t prove that Trump violated specific criminal laws. That doesn’t mean Trump is innocent of the charge he tried to steal an election he knew he lost. As Andy McCarthy noted on The Remnant, we don’t have a lot of criminal laws to cover Trump’s conduct because Congress and the courts rightly wanted to keep criminal justice issues far away from elections. That’s a fair point. It’s also true that it never occurred to anybody to come up with criminal laws to cover this kind of situation because we naively assumed that anyone who made it to the presidency wouldn’t be as morally and psychologically disordered as Donald Trump. Bless our hearts.
But Pence himself, for all his laudable—or cynical—respect for the presumption of innocence, routinely says that Trump tried to violate the Constitution. Surely he doesn’t now think that just because a criminal trial is underway, he can’t hold that position? Is he going to recall all copies of his book? If he’s asked at the Iowa State Fair about why he “betrayed” Trump, is he going to say, “I can’t answer that because there’s a criminal trial underway”?
Or consider many of the Republicans who voted against impeachment. A handful said they were voting against impeachment because Trump did nothing wrong. But more of them hid behind an argument that impeaching a private citizen was unconstitutional. I disagree with that argument—as it pertained to Trump—but we don’t have time to get into all that.
Republican Senate Majority Leader Mitch McConnell said on the Senate floor, “Former President Trump’s actions that preceded the riot were a disgraceful, disgraceful dereliction of duty. … There’s no question—none—that President Trump is practically and morally responsible for provoking the events of the day.”
John Thune said, “My vote to acquit should not be viewed as exoneration for his conduct on January 6, 2021, or in the days and weeks leading up to it. What former President Trump did to undermine faith in our election system and disrupt the peaceful transfer of power is inexcusable.” Even Sen. Mike Lee said, “No one can condone the horrific violence that occurred on January 6, 2021–or President Trump’s words, actions, and omissions on that day. I certainly do not.”
Steve Daines said that he voted against conviction because “the trial was unconstitutional.” But he added, “I reject the notion that Vice President Pence had the constitutional authority to overturn the election on January 6. It’s simply not true. Vice President Pence faithfully upheld his oath of office and certified the election.”
And then there’s Lindsey Graham.
His statement on his vote was full of legalistic and partisan jargon. But this was after his craven about-face. On the evening of January 6, Graham gave an impassioned speech insisting he was done with Trump, “All I can say is count me out. Enough is enough.” Graham also went to extraordinary rhetorical lengths siding with Mike Pence and the U.S. Constitution:
“To the conservatives who believe in the Constitution, now’s your chance to stand up and be counted. Originalism, count me in. It means what it says. So Mike, Mr. Vice President, just hang in there. They said, ‘We can count on Mike.’ All of us can count on the vice president. You’re going to do the right thing.
In short, the issue of his criminal guilt is separate from the broader question of his moral and historic culpability. And there’s no reason to cling to the presumption of innocence on this score. He’s just so, so, so guilty. By all means, use “alleged” when discussing criminal enterprise. But there’s no reason to use “alleged” when talking about his unconstitutional and immoral enterprise.
I get the argument that the criminal justice system shouldn’t be contorted just to “get Trump”—i.e. hold him accountable for his indefensible but possibly not criminal behavior. But with the exception of the Bragg indictment, I don’t think that’s happening. (It’s certainly not happening in the documents case. He’s just obviously, indisputably guilty there.) And if Trump is convicted for his clearly unconstitutional and possibly criminal scheme, I will not shed a single tear. It is his actions that have invited all of his problems. He is the poster child of “f-ck around and find out.” And if bad precedents are set, he will be the primary author of those precedents, not Jack Smith, Merrick Garland, or Joe Biden.
Conservatives used to understand the distinctions between contemptible and indefensible behavior and legal or constitutional questions. We used to say all the time that just because something is legal or constitutional that doesn’t mean it’s right. We used to say, “Who are you to judge?” is a cop out. Now, it’s an all-purpose defense of bad acts from shtupping porn stars to rioting.
Large swaths of the right have succumbed to the moral relativism and postmodern gobbledygook they once mocked and decried. They don’t use the jargon, but the jargon is written on their hearts.
We used to scorn ideas that privileged “personal truths” over objective reality. But now thanks to the need to bend every standard to fit Trump’s crooked character, many on the right subscribe to the idea that “perception is reality” and “the personal is political.” If the system, the rules, norms, laws, hinder Trump, then that’s the stuff that needs to go. It’s not just because the new right swamps are full of Pepe frogs croaking about how conservatives should do whatever is necessary to win. The frogs are just hitching a ride on the back of the Trumpian alligator. The real problem is that critical Trump theory is mainstream now.
A piece in the The New Yorker about the DeSantis campaign found that 70 percent of Republican focus group participants agreed that COVID lockdowns in 2020 were bad. But when the moderator asked if “Trump’s COVID lockdowns” were bad, 70 percent disagreed.
It’s because of cultish lunacy like this, I’m sure that even if there was a videotape of Trump saying, “If I’m going to stay in office, we have to pretend I didn’t actually lose, even though we all know I did” his defenders will simply switch gears and say “Good! I’m glad he tried to steal the election. At least he’s a fighter!” Of course, this would prove he wasn’t man enough to win the fight. But never mind.
Various & Sundry
Canine update: Some of you might remember Bear, a new puppy addition to the dog park. This morning I asked to get some new pictures of him because some Twitter followers asked. He posed very nicely. But Zoë, who was in the car watching the whole scene, was aggrieved by this breach of protocol. While I was taking Bear’s picture, Zoë started arooing in protest. I wish I got a video of it, but Zoë was sitting there grumbling and cursing under her breath like Muttley.
Pippa is extremely happy today because Friday is Creek Day, meaning she’s encouraged to go swimming. The problem is that while she recognizes Friday as Creek Day, she also recognizes every other day as Creek Day, too. Also, since I know many of you are interested, there’s been no growling or friction between the girls. I should really get a “Days Since Inter-Canine Drama” sign. There has been inter-feline drama, though. The other day, Chester came up on the back porch and cornered Gracie. I was alerted to this by a sound somewhat reminiscent of cutting a bike chain with a chainsaw. I ran out in my socks and tried to scoot Chester away with my foot. Gracie made a break for it toward the house, and Chester lunged after her. When I tried to stop him, he took a big swipe at my foot and left a couple two-inch long gouges in my instep. It hurt for a couple days. So he’s on my bad cat list. Have a great weekend.
ICYMI
Small dollar donors are corrupting our politics
Dispatch Live on the latest in Trump legal drama
The Remnant with the euphonious Daniel Hannan
Political controversies about music are boring
The Remnant with Ken Pollack on Iran’s shifting grand strategy
The Dispatch Podcast on the upcoming GOP debate
And now, the weird stuff
