(This is the second of a two-part series. Part I can be found here.)
Legal scholars, pundits, and millions of others will continue to debate these issues as this prosecution of Trump proceeds. Virtually every thinking observer, however, recognizes that the courts may not have the final say on any of them.
U.S. politics is wracked by polarization that only deepens with each new charge brought against Trump. This indictment is the third this year. A grand jury in Fulton County, Georgia, is considering additional charges related to Trump’s efforts to reverse the 2020 election results in that state.
As World-Outlook explained in an article on one of the earlier indictments, “In previous periods of U.S. politics such overwhelming rejection of a leading political figure,” [by key liberal and conservative ruling-class spokespeople evident in the days after January 6] “would have led to that politician’s disappearance from the stage.
“Instead, the opposite has occurred. Not only did Trump remain on the political scene, he is still the single most powerful figure in the Republican Party. He has begun a new campaign for the 2024 GOP presidential nomination that rests on a base of many millions of loyal supporters.
“The problem for the ruling class,” that article continued, “is that tens of millions agree with Trump. CBS News reported June 11  that a poll conducted by the network and the marketing firm YouGov revealed that a whopping 76% of likely GOP primary voters believe the indictment of Trump is politically motivated.” This refers to an earlier indictment for Trump’s alleged mishandling of classified documents. There are few signs that the latest indictment has eroded Trump’s support or is viewed any differently by his supporters.
“Trump’s 2024 Campaign Seeks to Make Voters the Ultimate Jury,” was the headline of a news analysis in the August 3 New York Times. “A federal jury will determine whether he is held accountable for his elaborate, drawn-out and unprecedented attempt to negate a vote of the American people and cling to power,” the article said.
“But it is tens of millions of voters who may deliver the ultimate verdict.”
David Remnick, editor of the New Yorker magazine, wrote an August 1 column headlined, “The New Trump Indictment and the Reckoning Ahead.” While expressing full-throated support for Trump’s prosecution, Remnick conceded, “What minds will it alter? What difference will it make?” He then added, “It still seems quite possible that Trump will be elected President for a second time.”
That outcome would render the indictment, and likely even a conviction, moot.
Nor do working people have an organization willing and able to explain how and why the Democratic Party, like the Republican Party, serves the interests of the employers. Nor that the capitalist government — under a Democratic or Republican administration — cannot be relied upon to safeguard democratic rights.
A mass working-class party would explain why restrictions on democratic rights, including the right to speak freely, will inevitably be used against working people when we organize and mobilize to fight for our own rights and interests.
This is posed by the charges against Trump concerning “obstruction of an official proceeding.” Here the prosecutor seeks to hold Trump responsible for the disruption of Congress’ certification of the electoral vote on January 6. The issue has already arisen in court cases involving others charged for January 6 offenses, as World-Outlook reported:
“At the heart of the conflict,” an article on the website Politico explained, “is how to measure whether Jan. 6 rioters acted with ‘corrupt intent,’ a central element in the crime of obstructing an official proceeding. The judges noted that the requirement of ‘corrupt intent’ was meant to avoid inadvertently criminalizing traditional protest or lobbying activities that have been a feature of civic engagement throughout American history. Any decision on the meaning of corrupt intent would have to separate those legitimate activities from potential criminal conduct.
“But Judge Florence Pan, who wrote the majority opinion,” Politico continued, “said it was the wrong time to decide that broad question because the three defendants whose cases were before the court were all also charged with assaulting police. There’s little question that those who assaulted police that day acted with ‘corrupt intent.’ But in Jan. 6 obstruction cases that don’t involve assault, determining ‘corrupt intent’ is much more complicated, she said.”From Trump Indictment: What Are the Issues?
World-Outlook went on to explain, “The broad interpretation the Justice Department would like to give to ‘corrupt intent’ could easily be applied to others who may demonstrate at the Capitol while Congress is in session, but who do not break any laws — other than ‘obstruction’ as defined by prosecutors.”
The issue of ‘intent’
The issue of “intent” is key. Set Trump and this prosecution aside for a moment. When working people and the oppressed organize mass protests, putting the judgment of “intent” in the hands of prosecutors and the courts can certainly work to limit the rights of those seeking justice. During the outpouring of anger against police brutality and murder in 2020, some claimed the intent of protest organizers was violence and property damage.
A fighting labor movement will face the same threat. Walkouts and picket lines will aim to shut down production — the primary purpose of a strike. When company goons and cops seek to break those strikes, union organizers can — and will — be charged with the “intent” to cause any violence that results.
Labor history offers more than a few examples of working-class militants who have been framed up when violence occurs. Perhaps the most well-known case is the Haymarket defendants. In 1886, during a peaceful protest at Haymarket Square in Chicago advocating the 8-hour day, a bomb went off as cops began to disperse the crowd. After the blast and ensuing gunfire, seven police officers and at least four others died; dozens were wounded. Eight workers who held anarchist views were indicted on “conspiracy” charges. The “evidence” was that one of the defendants may have built the bomb, but none of those on trial had thrown it, and only two of the eight were at the Haymarket at the time!
Despite the weakness of the government’s case, seven defendants were sentenced to death and another to 15 years in prison. Four were hanged while one committed suicide. The remaining defendants were pardoned six years later.
Returning to the latest Trump indictment, the prosecution’s challenge in proving intent is a significant one. “Heart of the Trump Jan. 6 Indictment: What’s in Trump’s Head,” read an August 2 Washington Post article.
It cited Robert Kelner, “a veteran D.C. lawyer,” who said, “I think the entire indictment really turns on the question of Trump’s intent. Arguably, there isn’t any smoking-gun evidence in the indictment regarding intent, though there is certainly circumstantial evidence. At the heart of the case is really a metaphysical question of whether it’s even possible for Donald Trump to believe that he lost the election, or lost anything else, for that matter.”
“At trial,” the Post continued, “Smith ‘needs to show that all of the false statements Trump made about the election, which the indictment chronicles in great detail, were understood by Trump to be false; otherwise, it becomes a case about political speech and First Amendment rights, and that’s not where the government wants to be,’ Kelner said.”
Again, we must consider the broader implications that go beyond this case. Legal precedents that give the government the authority to divine someone’s intentions will lead to restrictions on civil liberties and frame-ups of working-class fighters.
Definition of conspiracy
On August 10, New York Times columnist David French suggested some legal arguments for and against the indictment. He concluded in favor of the prosecution and offered at least one argument that should give any supporter of civil liberties serious pause:
“In 1910 the court wrote that the definition of a conspiracy to defraud the United States ‘is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government.’”
That would include the Defense Department, among others. Antiwar activists — including antiwar GIs — could easily be targeted under such an interpretation. Clarence Darrow’s warnings about the use of conspiracy statutes should be taken to heart.
Some of Trump’s actions as president and his entire course of conduct in seeking to overturn the 2020 election posed serious threats to democratic rights. It was Trump himself who first sought to criminalize his differences with opponents by repeatedly encouraging chants of “Lock her up!” directed against Hillary Clinton, the Democratic nominee who ran against him in 2016.
That danger, however, cannot be met by restrictions on political advocacy. A further sign of this danger was reported on August 9. Early in 2023, prosecutors for the special counsel “obtained a search warrant early this year for Mr. Trump’s long-dormant Twitter account as part of their inquiry into his attempt to overturn the 2020 election, according to court papers unsealed on Wednesday,” according to the New York Times.
The government went further. “The papers indicate that prosecutors got permission from the judge not to tell Mr. Trump for months that they had obtained the warrant for his account.”
What the government can do to Trump today can be done to others tomorrow. Restrictions on civil liberties will not defeat Trump. They will not defeat Trumpism. That requires a political challenge to the reactionary ideas and Bonapartist course of conduct it represents, not legal measures that Trump and others will not hesitate to adopt themselves against their own political opponents.
(This was the second of a two-part series. Part I can be found here.)
Categories: US Politics