A day ends with “y” and former President Trump has been indicted. This time, the indictments concern his effort to overturn the 2020 election.
These are the most serious charges yet to confront the former President and focus directly on his actions in the months between the 2020 election and the failed coup of January 6, 2021.
The Charges Against Donald Trump
Trump is charged with four counts; defrauding the United States; obstructing the certification of the Electoral College vote; depriving people of the right to have their votes counted, and obstructing an official proceeding. The President is alleged to have promulgated the idea that the election was fraudulent, facilitated the creation of a false slate of electors, improperly pressured the Justice Department into supporting his fraudulent claim, and improperly pressured the Vice President into supporting the effort to steal the election. These allegations are not, contrary to the claims of histrionic commentators on the Right, infringements of the President’s right to free speech, except insofar as criminal conspiracies often require verbal and written acts of speech.
Evidence in support of these allegations seems substantial. A number of co-conspirators (including most notably former New York Mayor Rudy Giuliani) also appear to be vulnerable to indictment, and may face legal action in the future. The testimony and written notes of former Vice President Mike Pence appear to lend critical support to the Department of Justice’s case. Indeed, the indictments allege that Trump was fully aware that his claims that the election was stolen were fraudulent, and moreover that almost all of his co-conspirators were also aware that the 2020 election had not been stolen. This undercuts any potential justification defense; Trump knew that he was attempting an illegal seizure of power and decided to go ahead anyway.
At this point it’s difficult to predict how the legal and political processes will play out.
The legal process and the 2024 election will proceed in parallel, with former President Trump attempting to leverage a sense of outrage about his prosecution against the increasingly public evidence of his wrongdoing. There’s little question that this process puts the American democratic system into significant danger; Trump will be running for President as a means of short-circuiting the function of state and federal courts.
Some continue to argue that whatever the validity of charges against Trump, indicting a former President and current candidate for President represents serious danger to democracy. In this narrative, the Department of Justice and local prosecutors should exercise extraordinary caution in bringing charges against a political opponent of the current administration, as such charges necessarily carry the whiff of politics. Let’s consider the alternative; What would it mean for a democracy to ignore an attempt to overthrow the government? On occasion, governments have treated coup plotters with a surprisingly light touch. Most coups, after all, involve some faction of the political elite, and in most countries the political elite operates by norms that soften direct conflict.
Sometimes a soft touch works. The lenient response of De Gaulle’s government to the 1961 Algiers coup did not fatally undermine the legitimacy of the French government, and indeed probably helped underwrite the stability of the Fifth Republic. By contrast, the Japanese government of the 1920s and 1930s was viewed as exceedingly indulgent of the militarists who eventually seized it; a firmer hand might have led to different results. And of course the emblematic case of the failure of a light touch is the Weimar government’s tepid reaction to the rise of Adolf Hitler, from the Beer Hall Putsch until the government’s final collapse in 1933. Altogether, the “let’s let bygones be bygones” approach is at least as fraught with danger as a decision to follow the law and conduct a serious prosecution of men and women who attempt to overthrow a democratic government.
Yes, Donald Trump Deserves to Be Charged
Of course, treating the indicted as an opposition politician is the only scenario under which it would be possible to prosecute a coup plotter; a successful coup is rarely prosecuted until much later in the story of democratic transition to authoritarian rule. The choice facing the Department of Justice (and its analogues in the states) is either to prosecute Trump for identifiable crimes or simply to ignore his crimes because he happens to be important.
Donald Trump pursued the destruction of America’s democratic institutions in service of his desire to remain in power. If that doesn’t represent a prosecutable crime, I can’t imagine what would.
Dr. Robert Farley has taught security and diplomacy courses at the Patterson School since 2005. He received his BS from the University of Oregon in 1997, and his Ph. D. from the University of Washington in 2004. Dr. Farley is the author of Grounded: The Case for Abolishing the United States Air Force (University Press of Kentucky, 2014), the Battleship Book (Wildside, 2016), Patents for Power: Intellectual Property Law and the Diffusion of Military Technology (University of Chicago, 2020), and most recently Waging War with Gold: National Security and the Finance Domain Across the Ages (Lynne Rienner, 2023). He has contributed extensively to a number of journals and magazines, including the National Interest, the Diplomat: APAC, World Politics Review, and the American Prospect. Dr. Farley is also a founder and senior editor of Lawyers, Guns and Money.