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Trump has been indicted (again), this time in Georgia, under RICO charges. The charges against him and a large number of co-conspirators relate to efforts to overturn the 2020 election. Full indictment here.
We've seen a range of charges laid against Trump in varying jurisdictions, and I think it's fair to say the cases have varying strength. These new charges seem to me to be on the strong end of the spectrum.
Helpfully, the indictment is painfully clear at every point as to what particular acts constitute which particular crimes or elements of crimes. This makes it a lot easier to assess for an uneducated layman like me. On at least some of the charges, it would appear that he's deeply screwed. E.g. "Solicitation of Violation of Oath by Public Officer" seems to be open and shut, and carries a minimum 1 year sentence. He also has no capacity to pardon himself if he is elected President, as these are not federal charges.
As far as I can tell Trump's only hope to escape conviction here is jury nullification.
Are you joking or something? There's no way I'm reading a ~100 page indictment, but if that is your idea of a strong charge then the rest of it is probably not worth reading anyways.
Have you listened to the Raffensberger call? It's extremely clear (to me) that Trump is claiming that there are many fraudulent ballots in Georgia (he goes on and on about it, and why he thinks so) -- then asks the people on the call to try to locate some of them. It's right there in the first few minutes.
It may be less clear to you for whatever reasons, but surely this is at least a plausible interpretation of what Trump is trying to say -- and if this were the case, he is definitely not asking anyone to violate their oath. Finding such votes would be required by their oath, surely?
I'm aware that the media has widely reported that Trump was asking R. to fabricate some votes so he could win (probably significantly poisoning the jury pool in the process) but presumably the court will hear the actual call rather than reading Washington Post clippings -- and if you think this interpretation is open-shut I really don't know what to say.
Also included in your quote is the request made to David Ralston, speaker of the house, asking him to convene a special session of the house for the purpose of appointing fake electors.
If Trump thinks the election has been stolen, then the electors aren't fake (from Trump's point of view, obviously).
This sounds about the same as the Smith indictment, and is far from open-shut for the same reasons. (mens rea, essentially)
It's the same principle as - you think your wife conspired with a corrupt family court to take your children, so you forge documentation to get a school to turn them over to you, breaking a court order. Maybe you're right. But there are processes for addressing that, and if you ignore those (or in trump's case try them but perform terribly and don't prevail), you don't have a right to lie and manipulate other processes.
This is a fundamental way modern governance works. The process prevents conflict by giving both individuals and the state a - usually fair - 'final authority' to appeal to, instead of using violence, coercion, or deception. Even if it's sometimes wrong, it's better to have a single source of truth to prevent conflict - whether that's individual conflict over who owns what or who deserves what, or political conflict over who has power. It's known who wins and how that's decided, according to the process and the court, the monopoly on violence enforces it, so nobody bothers to even fight. If you're wrongfully convicted, your supporters don't suicide bomb the cops/accusers and start a blood feud, they collect evidence and appeal. If someone screws you on a deal, you sue based on the contract both parties signed. If you lose an election and are upset, you file a lawsuit.
It could be argued this is a fundamental pillar holding up modern life. I'm not entirely sure - certainly a neoreactionary government would have less of this at the top-level, but that isn't ours. And if the election wasn't stolen (and I'm very unconvinced by arguments that it was), then Trump's actions is not good for democracy.
This is exactly what the neoreactionary critique gets at, though. In this scenario, the process is your king; your final authority. And because those processes are carried out by people, ultimately those people are your kings.
In short, this way of thinking creates and sustains an oligarchic form of government. Don’t like the process? Don’t like who runs it? Then appeal. By what means? A process. Who runs that process? You’ve already guessed.
Honestly, I agree with you that this is probably the best way of doing things a lot of the time, as opposed to direct personal power or mob democracy. But this flaw is inherent and IMO when the bureaucracy gets too powerful and too uniform then this form of government starts to curdle.
You're allowed to change the people who run the process.
(How? By a process...)
But still. You can indeed change the people in charge and they can indeed change the processes of government. Even if in theory you can get into a closed loop where the people in power use their power to stay in power, that is not currently the case in reality. Although Trump did give it the old college try.
That’s exactly the point under discussion, no? The allegation from trump’s side is that this has already happened, and that following standard procedure for resolving disputed elections is therefore meaningless because the entire bureaucracy is controlled by the enemy.
Personally, though, I was thinking of the Civil Service, who I very definitely can’t vote out of office. From where I’m standing Britain has been in that closed loop for at least 20 years now.
I assure you that politicians very much do have the power to shut down departments, fire civil servants, etc. And if none of the options on your ballot paper are promising to do that, you can stand for election yourself.
The obstacle you face is not that the civil service is all-powerful. It's that your fellow citizens disagree with you.
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I thought that's what we voted on in 2016, but instead the people in charge of the process didn't play fair, and instead hamstrung the duly elected executive at every opportunity. The uniparty did not play fair.
Instead the 2016 election remains Trump's greatest crime. He defied the uniparty and must be punished for doing so. I have yet to see anything that contradicts this interpretation, and so it remains the lens through which I view these developments.
Might there be other explanations for Trump's failure than the forces of Mordor using dark plots to defeat our lone hero? Maybe Trump was an ineffective executive with a lot more bluster than execution, who was too stubborn to not commit crimes that didn't benefit him at all?
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Yes it is. The deep state is in power and will forever be in power unless someone can fire 3/4 of the federal government which is impossible due to lawfare. The bureaucracy is a self-sustaining cancer at this point.
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I don't believe this is true. Even if you think fraud has occurred, you can't just appoint electors based on what you think the result would have been. There's a process that has to be followed.
Even if Trump believes that the process has been corrupted, it's still illegal for him to solicit a public official to subvert the process.
By analogy, let's say I buy a lottery ticket but then someone steals it from me. The lottery gets drawn, and I am convinced I had the winning numbers. The lottery won't pay me out based on my insistence that I would have had the winning numbers if they hadn't been stolen. I am not then allowed to rob the lottery office to rectify the theft I suffered - even if I am correct that I had the numbers.
Now, perhaps I am misunderstanding the law in some important way here - I am not a lawyer, and much less a Georgia lawyer. But my understanding here is that the effort to solicit a public official in a plan to appoint electors who could not be lawfully appointed is straightforwardly illegal.
The electors aren't fake either way. They are proposed alternative electors, which is how past elector disputes have been done. There was never any conspiracy to present them as the primary electors.
The irregular Georgia electors submitted a "Certificate of Vote" to Pence's office where they claimed to be the primary electors, as did the irregular electors in Arizona, Michigan and Nevada. The irregular electors in Michigan are being prosecuted locally for falsifying an official document. It looks like most of the irregular electors in Georgia have rolled and are going to testify against Trump.
The irregular electors in New Mexico and Pennsylvania worded their certificates to be contingent on their later being determined to be the real electors, which keeps them out of legal trouble, but means the certificates are less useful for the Eastman/Chesebro scheme to have Pence overturn the election on Jan 6th.
Aha! The whole time I was writing about the Georgia charges, I was thinking “this wouldn’t have been a criminal charge if they’d covered their asses better.” It’s good to know some of the other groups agreed.
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Others disagree -- there was an arguably legal path to this, and it has happened in the past. Obviously much depends on the particulars, but criminalizing the advancement of legal theories which may or may not apply in a given case seems like a bad idea. (not to mention conflicting pretty badly with the first amendment)
But you are allowed to write a letter to the head of the state lotto suggesting that they should give you the money -- you can even go to the press and say that's what they should do!
If this is true, then everyone who issued tweets encouraging faithless electors in 2016 is also straightforwardly guilty.
Do members of the electoral college swear an oath of office to uphold the constitution? Does Georgia have a law requiring electors to cast their votes according to the election results? These are serious questions, I sincerely don't know.
If they do, and a person called an elector from Georgia and asked them to violate the law by being a faithless elector, then yes it does appear that such a person would be straightforwardly guilty.
No - among other places, this is discussed in Baude essay on Section 3, because it creates an interesting lacuna (a presidential elector who engages in an insurrection is not disqualified from future office, but an oath-taking officer who engages in an insurrection is disqualified from being a presidential elector).
No - see here (although that is the status now, not as of 2020). According to that map, the only states where being a faithless elector is a crime (and thus the only ones where secondary liability for advocating a crime could conceivably trigger) are both Carolinas, New Mexico and Oklahoma. The more normal approach is to declare the faithless elector's vote void and to allow the other electors for that state to replace them.
In addition, a rando tweeting into the aether would be protected by the 1st amendment in a way that a high government official making a personal phone call to an individual elector backed up by detailed (false) arguments of why the election was fraudulent and vague threats of criminal prosecution for covering up the fraud would not be - the law distinguishes between non-serious and serious crime-encouraging speech.
Not sure whether things were much different in 2016, but I do seem to recall some electors not from any of those states being penalized -- it's irrelevant though.
Regardless of which states attach penalties, electors in most (all?) states do in fact swear an oath to vote according to the results in their state -- the debatable part would be whether they can be considered "public officials" -- which I'd argue against, but "parts of this indictment are based on debatable legal theories" does not seem to be holding anybody up in this business!
Anyways, if you acknowledge that certain states would consider faithless electorism to be some kind of crime, even one would be enough -- this was very much a nationwide, organized, and well funded advocacy exercise: https://en.wikipedia.org/wiki/Faithless_electors_in_the_2016_United_States_presidential_election#Public_outreach_to_electors
A conspiracy, if you will! So while random twitterati might squeak by on whatever's left of the 1A, I think your assertion that (say) The Hamilton Electors would be in a different position here than Trump and his cohorts is unsupported.
(I'd say it's actually somewhat worse in that their justification was not "We think Trump committed fraud" but rather "We don't like Trump and want to subvert the will of the voters", and also that they actually succeeded in flipping some electors! At least a few were fined as I recall.)
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Thank you!
I find it a bit bemusing when people pose these questions with the implication that if someone in a somewhat-similar-but-somewhat-different situation wasn't charged with the same crime, there must be some kind of corruption or double standard. Most the time it's just that details are different and details matter.
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Biden swore to uphold the Constitution, but created the "Covid" eviction moratorium, which was unconstitutional. If he asks someone to violate the law by preventing a landlord from getting rid of a tenant, is he straightforwardly guilty?
Under OCGA 16-4-7? I wouldn't think so, no. I don't believe that a landlord failing to evict a tenant would constitute a felony.
Was there some other statute you were thinking of? If so you'll need to point me to it.
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On the tweeting for faithless electors that gets a lot of Logan Act vibes. Where if that was a crime then everyone is guilty whoever once tweeted about geopolitics
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