(This is the first of a two-part series. Part II can be found here.)

By Geoff Mirelowitz and Argiris Malapanis

On August 1, special counsel Jack Smith, appointed by the U.S. Justice Department, indicted former U.S. president Donald Trump on federal charges related to his efforts to overturn the 2020 presidential election results. Two days later Trump pled “not guilty” to all four counts in federal court in Washington, D.C.

It is indisputable that Trump and his allies engaged in a concerted campaign to overturn the election results. To this day Trump peddles the bold-faced lie that the election was “stolen” from him. The new indictment, however, sets a dangerous precedent that the government can criminalize some political advocacy. If it prevails in this case, who will future administrations — liberal, conservative or extreme rightist — target in years to come? We stand with the defense of democratic rights, not defense of Trump.

The only effective answer to Trump’s right-wing demagogy and his readiness to challenge any established norm of bourgeois democracy that does not suit his purposes is a political one. It could include using independent election campaigns, the media, on-the-job discussions, and other means to explain that a billionaire acting as an autocrat does not represent the interests of working people, any more than his liberal or conservative opponents. This would require mobilizing labor and its allies around an action program of demands to defend our livelihoods and democratic rights. Such a response could only be effectively waged by a working-class organization independent of the employers and their institutions of power.

NEWS ANALYSIS

Trump’s actions are unprecedented in U.S. history. The outcome of the 2000 presidential election between George W. Bush and Al Gore was also sharply contested. The two sides made conflicting legal arguments. But that dispute ended after the U.S. Supreme Court stopped further attempts to recount Florida ballots, and Gore then quickly conceded.

After a right-wing mob breached police lines at the U.S. Capitol on January 6, 2021, and temporarily halted certification of the 2020 Electoral College results, World-Outlook wrote:

The U.S. president and his supporters filed dozens of complaints and lawsuits to push unsubstantiated claims of a fraudulent vote. State government officials, often Republicans, state legislatures in the six “swing” states where Trump disputed the outcome of the popular vote, as well as lower federal courts, and the U.S. Supreme Court swiftly rejected these challenges. Despite such overwhelming institutional repudiation, Trump’s conspiratorial and outlandish claims of a “stolen election” still won backing from 139 members of the House of Representatives and 8 U.S. senators, who in the end objected to certifying the election results in Arizona or Pennsylvania.

They also energized radical rightist groups, which, with Trump’s prodding, staged violent protests in the U.S. Capitol Jan. 6, storming the building….

These methods — conspiracy theories, the “big lie,” the leader allegedly under unfair attack from special interests — are among the stock-in-trade of Bonapartist demagogues who assert their word must be final in all disputes.^[1]

From Radicalism, Bonapartism, and the Aftermath of the 2020 U.S. Election

Response to indictment mixed

More than two and a half years later, federal prosecutors now argue that Trump’s reactionary campaign to challenge the election results violated federal law. The initial response to these charges has been mixed.

The New York Times and other liberal publications quickly supported the indictment. The Times’ August 2 editorial declared Trump “A President Accused of Betraying His Country.” Yet the next day the Times lead headline announced, “First Amendment Is Likely Linchpin of Trump’s Defense.” (It is noteworthy that the Times on-line edition recast the same article’s headline as, “Trump Election Charges Set Up Clash of Lies Versus Free Speech.”)

The Times cited Smith’s indictment, which says in its introduction: “These claims [about a stolen election] 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.”

While it is a matter of public record that Trump’s claims are false, the suggestion that advocacy leading to a “national atmosphere of mistrust and anger” is somehow a violation of the law and is not constitutionally protected will certainly be challenged in court. It is a dangerous idea with implications for the future that should concern all supporters of civil liberties.

The indictment acknowledges Trump’s right to make false claims. In a way this is unsurprising as lying permeates capitalist politics. The U.S. government has often launched military intervention in other countries — with consequences far more deadly than those on January 6 — with lies or misrepresentations of the truth. Witness the claims — proven to be false — that “weapons of mass destruction” allegedly developed by the regime of Saddam Hussein justified the 2003 U.S. invasion of Iraq.

Washington escalated its war against Vietnam using lies about the “Gulf of Tonkin incident” in 1964.^[2] Throughout more than eight years of war that followed, the government continued to lie and misrepresent the facts. As millions came to oppose the war and demand that Washington get out of Vietnam, a national atmosphere of mistrust and anger grew so strong it included tens of thousands of GIs sent to fight the war.

‘Was it criminal?’

“Donald Trump’s post-election behavior in 2020 was destructive, and his malfeasance on Jan. 6, 2021, was disgraceful, but was it criminal?” asked the editors of the Wall Street Journal on August 1.

The National Review (NR), another conservative publication that has frequently blasted Trump, went further. “This Trump Indictment Shouldn’t Stand,” they declared in an August 1 editorial.

“We have on many occasions condemned Trump’s appalling actions in the aftermath of the 2020 election,” wrote the Review’s editors. “They were impeachable. He came close to being convicted in a Senate impeachment trial; with 57 senators finding him guilty, he was saved only by the Constitution’s two-thirds supermajority mandate for conviction and disqualification.

“Now, through a special counsel it appointed for this precise purpose,” the editorial continued, “the Biden Justice Department is attempting to use the criminal process as a do-over for a failed impeachment. In effect, Jack Smith is endeavoring to criminalize protected political speech and flimsy legal theories — when the Supreme Court has repeatedly admonished prosecutors to refrain from creative theories to stretch penal laws to reach misconduct that Congress has not made illegal.

“It is not even clear that Smith has alleged anything that the law forbids,” NR continued. “The indictment relates in detail Trump’s deceptions, but that doesn’t mean they constitute criminal fraud. As the Supreme Court reaffirmed just a few weeks ago, fraud in federal criminal law is a scheme to swindle victims out of money or tangible property. Mendacious rhetoric in seeking to retain political office is damnable — and, again, impeachable — but it’s not criminal fraud, although that is what Smith has charged. Indeed, assuming a prosecutor could prove beyond a reasonable doubt that Trump hadn’t actually convinced himself that the election was stolen from him (good luck with that), hyperbole and even worse are protected political speech.”

These are among the arguments Trump’s lawyers plan to make in court. National Public Radio interviewed John Lauro, one of Trump’s attorneys, on August 2.

“When you look at this indictment,” said Lauro, “it doesn’t really say much other than President Trump was exercising his right to talk about the issues and advocate politically for his belief that the election was stolen and was improperly run. He got advice from counsel — very, very wise and learned counsel — on a variety of constitutional and legal issues. So, it’s a very straightforward defense that he had every right to advocate for a position that he believed in and his supporters believed in. And this is the first time in the history of the United States where a sitting administration is criminalizing speech against a prior administration. It’s really quite unprecedented and it really will politicize the criminal justice system…”

“At the bottom,” Lauro concluded, “the government will never be able to prove beyond a reasonable doubt… that President Trump did not believe in the righteousness of his cause.”

This line of defense will also be challenged. If Trump’s lawyers fail to convince a jury, it is certain they will appeal a conviction. Appellate and Supreme Court justices may be far more open to such defense claims.

Prosecutors have already objected to Trump’s lawyers arguing some of these issues publicly. On August 7 the New York Times reported that one prosecutor, Thomas P. Windom, filed papers in court that attacked Lauro for appearing “on five [Sunday] television programs” and discussing “this case in detail.”

One can strongly oppose Trump’s views and actions but still see the danger here in criminalizing his speech. Many criminal charges — and certainly clearly political charges such as these — are debated in the court of public opinion. Virtually every working-class fighter targeted by the government has correctly tried to do so. The government always has vast resources to present its case. Limiting the rights of the accused must be rejected, even when the accused is a despicable figure like Trump.

Clarence Darrow, one of the most important defense attorneys of the 20^th century and an ardent defender of civil liberties, championed this idea. As The First Amendment Encyclopedia explains, “Darrow thought conspiracy laws were unconstitutional.” He “took unpopular cases — representing labor-movement clients charged with violence, treason, and conspiracy — to give voice to ‘the weak, the suffering, and the poor’ by defending their First Amendment rights to free speech, to a free press, and to petition the government.” His clients included socialist leader Eugene Debs.

Citing Darrow’s biographer, the encyclopedia adds, “Darrow, a brilliant defense attorney, considered the First Amendment to be the written guarantee that the government could place ‘no fetters on thought and actions and dreams and ideals of men, even the most despised of them.’”

What does the indictment say?

Some may argue that statements by the Wall Street Journal, National Review, and other conservative publications are strictly aimed at defending Trump or vilifying Democrats. We cite them because they reflect the views of significant sections of the ruling class, and because millions embrace such arguments.

A careful reading of Smith’s indictment, however, leaves no doubt about the weakness of the government’s case in charging Trump with criminal wrongdoing.

On page 2 the 45-page indictment states, “The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won” (emphasis added).

After granting Trump the right to lie and deceive, Smith then claims the former president broke the law by trying to overturn the 2020 election through lying and deceiving.

First among the charges, the indictment states, was “a conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government…” The other three counts include conspiracies in attempting to obstruct U.S. Congress from certifying the election on January 6 and to deny citizens their right to vote and have their votes counted.

What is the evidence? It includes efforts to pressure authorities in several states to overturn 2020 election results they had already certified. The most well-known and egregious of these was Trump’s demand of the Georgia Secretary of State, during a recorded phone call, to “find” 11,780 votes to change the outcome of the election in that state. Trump then threatened him with criminal prosecution if he failed to do so. But after the official refused Trump’s demand to break the law, Trump’s threat of prosecution never materialized — a fact the indictment fails to note. Trump tried to exert similar pressure in several other states. In no state was he successful.

“The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws,” the indictment says.

The votes of the fraudulent slates, however, were never counted. Signing a certificate under oath affirming one is a legitimate elector when one is not, may be illegal. (Michigan’s attorney general has brought charges against the 16 fake electors there.) If so, Trump signed no such statement. He may be morally and politically responsible for the actions of those false electors, but not legally. In addition, none of the statements or actions the indictment cites led to any false electoral votes being counted or even considered by Congress on January 6.

Smith uses many pages to lay out his case that Trump attempted to “enlist the Vice President to fraudulently alter the election results at the January 6 certification proceeding.” Long story short, Pence wouldn’t do what Trump demanded. Trump’s lawyers will argue that no matter how unreasonable their client’s stance may have been, he was entitled to his view that Pence did have the authority to stop the certification proceedings or outright declare his boss the winner.

The indictment also describes in detail Trump’s efforts to pressure his Justice Department to issue a memo declaring the 2020 election was marred by widespread fraud. When the Acting Attorney General and his deputy refused, Trump threatened to fire them and install another Justice Department official loyal to him to run the Department. But after the Acting Attorney General said bluntly that if Trump made good on his blackmail Justice Department employees would resign en masse, Trump folded and dropped his threat.

In summary, Trump lied through his teeth and threatened repeatedly to use his executive power to punish government officials who did not heed his demand to keep him in office despite his resounding defeat at the polls. But in the end, he did not use his power to fire top officials who refused to break the law for him. Nor did he use his authority as commander in chief to try to mobilize sections of the military in a coup to stay in power.

Trump is without question politically and morally responsible for the riot and violent assault on the U.S. Capitol on January 6. However, the government has consciously refrained from charging him with “inciting a riot.” Yet the indictment appears to want to make the same accusation without the charge (relying instead on charges of “obstruction,” which we discuss later).

(This was the first of a two-part series. Part II can be found here.)

NOTES

[1] As the inaugural article in World-Outlook explained: “More than 50 years ago Marxist scholar and working-class leader George Novack explained the essential meaning of Bonapartism. In an essay titled, ‘Bonapartism, Military Dictatorship and Fascism,’ which appears in his book Democracy and Revolution, Novack said, ‘Parliamentary government… becomes a liability to big capital when the middle classes are radicalized, the workers take the offensive and the country seems to be slipping out of its control.’

“He continued, ‘when social tensions tighten to the breaking point, parliament is less and less able either to settle the disputes at the top or act as a buffer between the power of property and the wrath of the masses. General disappointment with its performance plunges bourgeois parliamentarism together with its parties into a period of acute crisis.’

“Bonapartism, Novack explained, ‘carries to an extreme the concentration of power in the head of the state already discernible in the contemporary imperialist democracies. All important policy decisions are centralized in a single individual equipped with extraordinary emergency powers. He speaks and acts not as the servant of parliament… but in his own right as ‘the man of destiny’ who has been called upon to rescue the nation in its hour of mortal peril.’”

[2] On August 2, 1964, the U.S. Navy engaged in covert operations very close to North Vietnam’s territorial waters, which provoked a reaction from North Vietnamese torpedo boats. Per Wikipedia, “In the ensuing engagement, one U.S. aircraft…was damaged, three North Vietnamese torpedo boats were damaged, and four North Vietnamese sailors were killed, with six more wounded. There were no U.S. casualties.” Washington alleged another attack on August 4. In the 2003 documentary The Fog of War, former U.S. Secretary of Defense Robert S. McNamara admitted that the supposed August 4 attack, for which Washington authorized retaliation, never happened. U.S. government lies and misrepresentations about these events led to the passage on August 7 of the “Gulf of Tonkin resolution” as a joint resolution of the U.S. Congress. It served as the legal pretext for the massive U.S. escalation of the war against Vietnam. The resolution was unopposed in the House and received only two “no” votes in the Senate. Congress repealed the resolution in January 1971, but the U.S. war continued.

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