A federal indictment of former President Donald Trump on charges pertaining to his ham-fisted contestation of the 2020 presidential election and the subsequent Jan. 6, 2021 jamboree at the U.S. Capitol was all but a foregone conclusion, and Department of Justice-appointed special counsel Jack Smith delivered the goods on Tuesday. In a 45-page sham indictment of the 45th president’s post-2020 Election Day conduct, President Joe Biden’s hatchet man argued for a ludicrously broad view of fraud and criminal conspiracy, a chilling view of free speech and a dystopian view of the attorney-client relationship. With its unprecedented politicization of the rule of law and brazen siccing of the federal prosecutorial apparatus on a leading partisan foe, the Biden Regime has made explicit that which should have already been obvious: The Regime wants a presidential rematch against Trump next fall.
Smith’s much-anticipated four-count indictment paints Trump as the focal point of a sprawling criminal conspiracy to reverse the results of the 2020 election. Under Smith’s theory of the case, Trump and his six “co-conspirators” directed a national effort to sow doubt about various states’ Election Day results and galvanize Republican-held state legislatures to submit competing slates of Electoral College electors, culminating in the intense pressure placed upon former Vice President Mike Pence to reject various states’ slates of electors on Jan. 6. But if Trump earnestly believed the 2020 election was stolen due to rampant fraud, then his attempts to direct his Department of Justice to work with the afflicted states to submit for consideration alternative slates of electors was justifiable; in fact, if he truly subjectively believed fraud on that great of a scale had occurred, one could plausibly argue his constitutional oath of office required such actions.
Smith’s move to get around this is to argue, based on nothing more than secondhand remarks, that Trump subjectively knew the 2020 election was not, in fact, stolen. But no matter how many different names of lawyers Smith trots out who apparently told Trump that he had in fact lost the election, it will be near-impossible for Smith to prove that Trump actually, deep down, knew he lost. It is entirely possible, for instance, that for every 99 people in his orbit who told him he lost, Trump chose to believe the one person who told him that he had really won; confirmation bias is real, and Trump is well known for taking the advice of the most recent person he happened to have spoken with. Smith’s attempted criminalization of Trump’s free speech right to push for competing slates of electors is also laughable when considering that various Democratic officials tried precisely the same thing — submitting alternative slates of electors by sowing doubt about the integrity of a presidential election in certain states — after George W. Bush’s presidential victories in 2000 and 2004, as well as Trump’s own presidential victory in 2016.
Smith’s indictment is even more absurd when we get to the figure that the indictment refers to, in paragraph 8(b), as “Co-Conspirator 2” — almost assuredly John C. Eastman, the former law school dean and current Claremont Institute senior fellow who legally represented Trump in his private capacity in the aftermath of the 2020 election. According to the indictment, the character we presume is Eastman “devised and attempted to implement a strategy to leverage the Vice President’s ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election.” That description is uncharitable to the point of being borderline defamatory. In reality, Eastman, who like any other lawyer had a solemn ethical obligation to zealously defend his client’s interests, advanced perhaps unpopular — though far from definitively untrue — interpretations of the vice president’s duties under the 12th Amendment and the constitutionality (or lack thereof!) of the Electoral Count Act of 1887.
These are unsettled legal questions under both extant Supreme Court case law and popular constitutionalism; they should therefore be subject to rigorous debate. But instead of rigorously debating the finer points of constitutional and statutory interpretation, Jack Smith would rather attempt to criminalize this specific act of constitutional interpretation, which was done in zealous defense of a legal client’s interests. Such a course of action, if successful, would do nothing less than fundamentally destroy the attorney-client relationship in America. What’s more, disputing the meaning and application of certain constitutional provisions is something the U.S. Supreme Court does dozens of times each year. Do Smith and his apologists intend to criminalize certain acts of constitutional interpretation by the justices of the Supreme Court? (Perhaps, given Democrats’ newfound interest in packing the Court, that question answers itself).
Ultimately, Smith is attempting to criminally prosecute Trump on the most overtly political of all political grounds — for political and constitutional actions that he and his “co-conspirators” took, as political and legal actors, to contest the quintessentially political event that was the 2020 presidential election. Just as the U.S. Supreme Court refuses to adjudicate certain cases due to what the Court’s case law refers to as the “political question doctrine,” so too should Trump’s actions in the aftermath of the 2020 presidential election be subjected to a political, not legal, potential remedy: the 2024 Republican presidential primary and, if Trump ends up being the GOP nominee, the 2024 presidential election.
Smith’s other indictment of Trump earlier this year, pertaining to classified documents retained at Mar-a-Lago, certainly had its legal flaws, but it was a comparatively much stronger case than the indictment the special counsel brought this week. The indictment this week is so sweeping, so dubious and so laughably untenable that it can’t help but give away what is really happening here: The Biden Regime wants to galvanize Republican primary voters to “rally around the flag” of the persecuted Trump, thus bolstering the former president’s odds of seizing the Republican presidential primary so that he can promptly lose again to Biden next fall.
That the Biden Regime seeks to face the wounded, vulnerable Trump in a grand battle royale rematch next fall has long been obvious. As this column argued one year ago, following the unprecedented FBI raid at Mar-a-Lago to retrieve certain classified/top-secret government documents that were held there:
“(I)t seems that Trump’s fundraising and support metrics have only increased due to his perceived martyrdom, thus bolstering his prospects in his likely-impending 2024 Republican presidential primary. Since this “rally around the flag” effect was so easily foreseeable, it seems likely that this was a factor in (Attorney General Merrick) Garland’s decision to approve the raid. The Regime seems to think that, since it defeated Trump in 2020, it can do so again in 2024.”
It was obvious then, and it is even more obvious now. The Regime, from Biden to Garland to Smith and down through the entire rotting Deep State edifice, is desperate to face the sole Republican who the current catastrophically unpopular, senile commander in chief stands likely to defeat at the ballot box. Indeed, from the Democrats’ perspective, the ceaseless lawfare against Trump not only makes Trump more likely to be the Republican presidential nominee, but it also bleeds Trump’s coffers and physically distracts him from the campaign trail. A courtroom in New York City or Washington, D.C., after all, is not a rotary club in Des Moines or a VFW in Charleston.
Republican voters can, if they so choose, avoid all this nastiness and maximize their chances of restoring civilizational sanity by nominating someone else as their presidential standard-bearer: some version of Trump, if you will, without Trump’s palpable baggage. Such a candidate does exist. The only question is whether Republican voters will reject that likely winner and instead give the Regime exactly what it wants by coronating the likely loser who may soon be facing four separate criminal indictments.