Letter from Biden’s Washington

Trump’s Offense Against Democracy Itself

At last, the former President’s “fraud,” “deceit,” and “lies” are called out in court.
Former U.S. President Donald Trump waiting in the wings of a stage behind a curtain
The most recent indictment against Donald Trump states in plain language that what he did in the two months following the 2020 election was a crime.Photograph by Scott Olson / Getty

The events that culminated in the rollout of the Justice Department’s most recent indictment of Donald Trump, on Tuesday, had a familiar ring: a barrage of social-media broadsides and gratuitous insults from the putative defendant, and hours of breathless cable-TV vamping about news that had not yet happened. (“A micro-development, but that’s all we have right now, Jake,” the CNN senior legal correspondent, Paula Reid, told the anchor Jake Tapper at one point.) In the early afternoon, reporters who had staked out the E. Barrett Prettyman Federal Courthouse, in downtown Washington, D.C., announced that the grand jury had left for the day. At 4:41 P.M., Trump made the reveal on his Truth Social account: “I hear that Deranged Jack Smith, in order to interfere with the Presidential Election of 2024, will be putting out yet another Fake Indictment of your favorite President, me, at 5:00 P.M.” In fact, the revelation of charges by the special counsel came at around 5:15 P.M. Before any details were made public, and even before Trump’s identity as the defendant was confirmed, his campaign put out a statement calling the case “reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes.” The focus on process, the legal minutiae, the pre-scripted bloviating—it all tended to somehow mute the import of the extraordinary event that was unfolding, threatening to turn a momentous day in this troubled Republic into the equivalent of a televised episode of watching paint dry.

Then came the indictment. It had taken two and a half years—and a lot of empty airtime—to get to that stark forty-five-page document, but when it came there was nothing tedious, normal, or quotidian about it. Donald J. Trump was indicted on four counts of the most serious offense that a former President of the United States could be charged with—an offense against democracy itself. An attempted coup. An effort to overturn the will of the voters and remain in power such as we’ve never seen before and hopefully never will again. Six co-conspirators enlisted by Trump to help carry out his attempt to nullify the results of the 2020 Presidential election were cited but not charged with him. Five of the six were quickly identified as lawyers: Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, and Kenneth Chesebro. Together with the former President, the indictment alleges, they used “dishonesty, fraud, and deceit to impair, obstruct, and defeat” the federal government in its job of certifying the election results.

Here it was, at last, stark and sharply stated: what Trump did in the two months following the election that he lost to Joe Biden was a crime. This came too late, perhaps, given the political calendar and Trump’s current stampede toward the 2024 Republican nomination. But still the message was clear and unequivocal. There are no euphemisms for Trump’s behavior and that of his co-conspirators in the indictment. The preamble laying out their conspiracy is a piece of legal writing for the ages:

The Defendant spread lies . . . . These claims were false, and the Defendant knew that they were false. But the Defendant repeated and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.

The words are stunning—and also a restatement of what we’ve known all along. The case against Defendant Donald J. Trump, although unprecedented, rests on unprecedented acts that took place in full view and for all to see.

It’s hard, now, to remember the assumptions that shaped the thinking of even the most bitter Trump critic before the early-morning hours of November 4, 2020, when Trump declared, “Frankly, I did win the election,” although he had, in fact, lost. Foremost among them was the notion that Trump, even if he proved to be a poor loser, would have to accept defeat. Even if he never conceded. Even if he refused to attend Biden’s Inauguration. Before the 2020 election, it was preposterous and simply inconceivable that a candidate could lose in the major battleground states, could lose the recounts, could lose the court cases, and still refuse to acknowledge his loss. When December 14, 2020, came and went, with all fifty states certifying their election results, as required by law, it once again seemed implausible to the point of absurdity that Trump could fight on. The law was the law, after all. The electoral votes were in by the required date, and the count wasn’t even that close. Biden’s total of three hundred and six to Trump’s two hundred and thirty-two was virtually identical to Trump’s winning margin in 2016, which he had hailed as a “landslide.” But then Trump went ahead and fought on anyway, right up until January 6th. It was unthinkable, and yet it happened.

To those who have followed the story closely, who watched last year’s hearings of the House select committee investigating January 6th and read its final report, there was little that was truly revelatory in Tuesday’s indictment by Smith. The power was in the aggregate. Among the well-known episodes enumerated and elaborated upon in the indictment were Trump’s pressure on state officials, in places such as Arizona and Georgia, to change electoral votes; his orchestration of fake electors in seven battleground states; his ploy to get the Justice Department to validate the fake electors, in a letter authored by Clark, the man whom Trump sought to install as the acting Attorney General; and, when all that failed, his last-ditch effort to get Vice-President Mike Pence, on January 6th, to claim powers that he did not possess and block the congressional certification of the electoral vote.

Pence’s testimony is a major addition to the record. The former Vice-President, though critical of Trump’s willingness to leave him to the mercy of the pro-Trump mob as it chanted “Hang Mike Pence!” on January 6th, had refused to participate in the House committee’s investigation. But he revealed to prosecutors that Trump had even pressured him during a Christmas Day phone call and lied to him about the Justice Department finding “major infractions” in the electoral process. Many specific instances of Trump’s false claims came, according to the indictment, from Pence’s “contemporaneous notes” of an encounter. Lordy, as James Comey might say, there are notes.

In a brief appearance before reporters after the indictment was filed, Smith sombrely described the January 6th attack on the Capitol as “an unprecedented assault on the seat of American democracy,” one that was “fuelled by lies.” Documenting Trump’s lies—and exposing how he and his band of Constitution wreckers knew them to be false—is a theme that runs through the indictment, which variously notes Trump’s “pervasive and destabilizing lies about election fraud,” his “prolific lies,” and how “he deliberately disregarded the truth.” Trump’s own Republican officials—his White House lawyers, his Attorney General, his director of National Intelligence, his Vice-President, his campaign advisers, and state political allies—told him that his claims were fantasy, according to the indictment, and yet he made them anyway. In fact, he lied about dead voters in Georgia and a suspicious document dump in Detroit. He lied about tens of thousands of double votes in Nevada. He lied about thousands of noncitizen votes in Arizona. Trump’s lies were so profuse that even his most aggressive defenders wrote derisively of them. My favorite addition to the record may well be the quote from a “Senior Campaign Adviser”—identified later by the media as Jason Miller—who mocked the wild claims advanced by Trump and others as “conspiracy shit beamed down from the mothership.” (This, it should be noted, did not stop him from defending Trump; to this day, Miller lists himself as a senior adviser to Trump’s 2024 campaign.)

Still, the indictment is far from a comprehensive account of the case against Trump. Countless questions remain. For starters, what evidence has Smith held back? Will he charge the so-far-unindicted co-conspirators? Are there coöperating witnesses whose identities are not yet public, such as, perhaps, the former White House chief of staff Mark Meadows, who, though not named as a co-conspirator, was present for much of Trump’s wheeling and dealing during those hectic final days? The biggest question of all, of course, is how and when we might expect a resolution of the case, given that it seems to be on a collision course with Trump’s 2024 Presidential campaign. As always with him, it comes down to the unknowable: How will this end?

The indictment itself concludes with a description of one of many moments when Trump might have, however belatedly, pulled the plug on the whole sordid affair. At 7:01 P.M. on January 6th, hours after a riotous horde had violently occupied the Capitol for the first time since British invaders in the War of 1812, Giuliani was still calling senators on Trump’s behalf. Trump was on the phone with his White House counsel, Pat Cipollone, who made one last effort to get him to relent. According to the indictment, Cipollone asked Trump, in light of the day’s horrific events, “to withdraw any objections and allow the certification.” But it was not to be. “The Defendant refused.”

There were many such points along the way, when Trump could have stopped this reckless game that he had unleashed. It did not have to end this way, in federal court, in a legal clash for the history books. And yet, for Trump, confrontation, even if it led to violence, was always preferable to his own unthinkable defeat. Perhaps, then, historians will phrase the question differently: With Trump as America’s President, could it have ended any other way? ♦