People Are Lying To You About The Trump Indictment

It’s a time of political, cultural, and legal war. asserted

So, in that spirit: the editors of National Review are absolutely lying to you about the most recent indictment of former President Donald Trump, and they are merely the vanguard of a host of lies. asserted

The Indictment Special Counsel Jack Smith indicted Donald Trump yesterday. asserted

Josh Barro and I, and our exceptional producer Sara Fay, put out an emergent episode of Serious Trouble last night discussing it. asserted

I’m proud of the episode and I submit it’s worth a listen. asserted

In brief, the indictment charges Trump as follows: Count One, conspiracy to defraud the United States in violation of 18 U.S.C. section 371. asserted

Section 371 has two parts. asserted

It’s most commonly used to charge a conspiracy to violate some specified federal crime: for instance, conspiracy to violate money laundering statutes. asserted

But it has another clause for conspiracies “to defraud the United States, or any agency thereof in any manner or for any purpose.” asserted

Count Two, conspiring to obstruct an official proceeding in violation of 18 U.S.C. section 1512(k). Count Three, obstructing an official proceeding under 18 U.S.C. section 1512(c) — which applies to someone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so. asserted

That’s the substantive offense underlying Count Two. asserted

In other words, Count Three is the crime itself, Count Two is the conspiracy to commit the crime, which are separate offenses and very commonly charged separately in federal law. asserted

Count Four is a conspiracy to interfere with the exercise of constitutional or statutory rights under 18 USC section 241. asserted

The Special Counsel’s theory of the case is broad: he asserts that Donald Trump and co-conspirators (unnamed, per Department of Justice policy, but including Rudy Giuliani, John Eastman, Jeffrey Clark, and Sidney Powell) engaged in wide-ranging conspiracies to present knowingly false claims and fabricated elector slates to the U.S. Senate when it tabulated and certified votes on January 6, 2021. uncertain

The conspiracy extended to using false statements to pressure state and federal officials to interfere with the vote count. asserted

Jack Smith’s theory is that this course of conduct amounted to defrauding the United States, obstructing and conspiring to obstruct the official Senate proceeding, and using fraud to interfere with the votes of others by attempting to have them fraudulently discarded. asserted

This Is Complicated, Which Is Not the Same As Unprecedented Nobody’s ever been charged with this set of facts because nobody’s ever attempted to overthrow the government by fraud like this before. asserted

Each of these federal criminal laws — which are broad and flexible by design — has been used to charge a wide variety of fraud and misconduct. asserted

Federal courts have upheld convictions under Section 371 for a very broad range of conduct designed to interfere with or obstruct government functions. asserted

More than a hundred years ago the Supreme Court said: The statute 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. asserted

Assuming, as we have, for it has not been challenged, that this statistical side of the Department of Agriculture is the exercise of a function within the purview of the Constitution, it must follow that any conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operations and reports as fair, impartial, and reasonably accurate would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation. asserted

A conspiracy to generate lies to submit to the Senate to derail vote tabulation and certification is plausibly within that definition. asserted

Similarly, obstructing an official proceeding under Section 1512(c) has been construed broadly to encompass a wide variety of acts: asserted

Furthermore, our peer circuits have applied the statute to reach a wide range of obstructive acts, not just those limited to tampering with documents or objects. asserted

Those courts have found “otherwise” obstructive conduct under subsection (c)(2) to include: (1) lying in written responses to civil interrogatory questions, Burge, 711 F.3d at 808–09; (2) soliciting information about a grand jury investigation to evade surveillance, Volpendesto, 746 F.3d at 286; (3) seeking a false alibi witness, Petruk, 781 F.3d at 444, 447; (4) tipping off the targets of criminal investigations, United States v. Ahrensfield, 698 F.3d 1310, 1324–25 (10th Cir. 2012); (5) asking third parties *338 to create fraudulent physical evidence, United States v. Desposito, 704 F.3d 221, 230–33 (2d Cir. 2013); (6) giving misleading testimony in a preliminary injunction hearing, United States v. Jefferson, 751 F.3d 314, 321 (5th Cir. 2014); (7) attempting to orchestrate a grand jury witness's testimony, United States v. Mintmire, 507 F.3d 1273, 1290 (11th Cir. 2007); (8) making false statements to a grand jury, United States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009); and (9) burning an apartment to conceal the bodies of two murder victims, United States v. Cervantes, No. 16-10508, 2021 WL 2666684, at *6 (9th Cir. June 29, 2021). asserted

That, too, is plausibly broad enough to encompass Trump and his co-conspirators’ conduct. asserted

Finally, Section 241 has long been used to charge officials with fraud in connection with elections on the theory that the fraud has the effect of disenfranchising voters and interfering with their rights. asserted

That has specifically included creating false votes and slates of votes. asserted

Once again, Trump’s conduct plausibly meets this standard. asserted

That doesn’t mean that it will be easy for the Special Counsel to prove beyond a reasonable doubt that Donald Trump had the requisite mental state to violate the law. asserted

It means that his actions plausibly violate the law. asserted

This also doesn’t mean that the state of the law, as described above, is inarguable. asserted

The federal courts’ interpretation of the law changes over time. asserted

Some trial judges have found that the Department of Justice’s interpretation of Section 1512 is too broad, though a Court of Appeals disagreed. asserted

Moreover, Trump and his co-conspirators were engaging in speech closely linked with politics, and political speech is the most jealously protected speech under the First Amendment. asserted

On the other hand, fraud and speech inherent in a crime are acknowledged First Amendment exceptions asserted

This is why the Special Counsel was very careful in the indictment to specify false statements that were specific and falsifiable (for instance, that 10,000 dead people voted) rather than statements that were rhetoric or political opinion (like “mail-in ballots are unreliable”). asserted

Here’s the point: there are legal and factual defenses to this indictment, but anyone telling you that it obviously, inarguably violates the law is lying to you. asserted

Passionate Partisans Are Lying To You And Will Keep Lying To You There’s a very broad range of plausible arguments about how to read American law. asserted

Saying “my interpretation is that this violates the First Amendment” or “I think the better reading is that obstruction of an official proceeding requires violence or perjury” are not lies, even if they are bad arguments. But some people are absolutely lying to you about the law and how it applies to the indictment of Donald Trump — or, at the most charitable, Cliff Clavening it by speaking confidently from a place of deliberate ignorance. asserted