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People Are Lying To You About The Trump Indictment
National Review Is Lying, For Instance. There Will Be More. Keep An Eye Out.
In peace there's nothing so becomes an opinion writer as charity and humility. But this isn’t peacetime. It’s a time of political, cultural, and legal war. Candor is all. 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. Brace yourself.
Special Counsel Jack Smith indicted Donald Trump yesterday. The indictment is here and all over the internet. Josh Barro and I, and our exceptional producer Sara Fay, put out an emergent episode of Serious Trouble last night discussing it. I’m proud of the episode and I submit it’s worth a listen.
The world is awash with analysis of the indictment. 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. Section 371 has two parts. It’s most commonly used to charge a conspiracy to violate some specified federal crime: for instance, conspiracy to violate money laundering statutes. But it has another clause for conspiracies “to defraud the United States, or any agency thereof in any manner or for any purpose.”
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.” That’s the substantive offense underlying Count Two. 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.
Count Four is a conspiracy to interfere with the exercise of constitutional or statutory rights under 18 USC section 241.
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. The conspiracy extended to using false statements to pressure state and federal officials to interfere with the vote count. 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.
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. In that sense, this is “unprecedented.” But in other senses, that term is misleading. 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.
Federal courts have upheld convictions under Section 371 for a very broad range of conduct designed to interfere with or obstruct government functions. 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. 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.
A conspiracy to generate lies to submit to the Senate to derail vote tabulation and certification is plausibly within that definition.
Similarly, obstructing an official proceeding under Section 1512(c) has been construed broadly to encompass a wide variety of acts:
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. 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).
That, too, is plausibly broad enough to encompass Trump and his co-conspirators’ conduct.
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. That has specifically included creating false votes and slates of votes. Once again, Trump’s conduct plausibly meets this standard.
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. It means that his actions plausibly violate the law.
This also doesn’t mean that the state of the law, as described above, is inarguable. The federal courts’ interpretation of the law changes over time. Some trial judges have found that the Department of Justice’s interpretation of Section 1512 is too broad, though a Court of Appeals disagreed. 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. Speech is not inherently or automatically outside of First Amendment protection merely because it is false. On the other hand, fraud and speech inherent in a crime are acknowledged First Amendment exceptions. 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”).
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.
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. 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.
Let’s take the editors of National Review. I’m singling them out from many people lying about the law, because they are prominent, we can expect better, and they deserve it. Fair disclosure: I have written for them.
The editors of the National Review have published an editorial arguing that impeachment was the proper vehicle to address Trump’s attempt to steal the election and that it’s improper and an abuse of the Department of Justice to use the criminal justice system to try to redress it. That’s not a lie; it’s an opinion. I disagree with it, but it’s not “right” or “wrong” factually, it’s a dispute over policy and what the rule of law should mean.
Unfortunately the editors aren’t satisfied with making a policy argument; they stoop to misleading and lying about the law. First, the misleading. They say:
Finally, Smith is charging Trump with a civil-rights violation, on the theory that he sought to counteract the votes of Americans in contested states and based on a post–Civil War statute designed to punish violent intimidation and forcible attacks against blacks attempting to exercise their right to vote. What Trump did, though reprehensible, bears no relation to what the statute covers.
This is a plausible originalist argument about Section 241, which is a Civil War statute and was originally intended to stop the sort of anti-civil-rights violence that the National Review eventually agreed was unlawful. However, I submit that the statement is materially and intentionally misleading because it does not reveal to the National Review’s readers that the United States Department of Justice has prosecuted election fraud as a violation of Section 241 for generations and has been repeatedly upheld by the courts in doing so. The National Review describes the charge as “remarkable.” Without adding that the charge is based on a widely accepted interpretation of Section 241 upheld by the courts, this argument is deceitful.
The National Review also flat-out lies. It says:
Here, it is not even clear that Smith has alleged anything that the law forbids. 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.
But National Review is lying to you about the Supreme Court and about what’s charged here. The Special Counsel charged Trump with defrauding the United States under Section 371. The Supreme Court and lower courts have repeatedly and specifically ruled that Section 371 doesn’t require a scheme to take money or property. National Review is referring to the latest in a line of cases interpreting a completely different statute, the wire fraud statute, that includes a “money or property” requirement in its text:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice . . . .
Justice Thomas, in the 2023 case to which National Review alludes, expressly relies on that language to find that the wire fraud statute requires a scheme to take money or (as traditionally defined) property. He does not even mention Section 371, which does not include the “money or property” language and which has a long history of Supreme Court and lower court cases holding that the object of the fraud need not be money or property, but can be interfering with government function.
That’s not just misleading; it’s a flat-out lie about the law.
Lies Are Not Opinions
As the criminal cases about Donald Trump progress, you’re going to see a lot of forceful, vivid opinions about whether the prosecutions are fair, just, good policy, or good governance. Good. That’s how things are supposed to work. Opinions about policy may be dumb, but they’re not lies.
But you’re also going to see a lot of false statements about what’s been charged, how federal criminal procedure works, and what the law is. Sometimes these will be misstatements out of carelessness (I’m occasionally guilty on that) or ignorance. But often they will be flat-out partisan lies, like National Review’s editorial. Just as Donald Trump was willing to call upon a host of overt lies in an attempt to steal an election, his defenders are willing to muster lies to defend him from any legal consequence. Donald Trump’s critics, too, will lie to deny that any argument made in his favor can possibly be colorable.
Don’t tolerate it. Call it out. Rebuke, and shun, the liars.
How can you tell the truth from a lie or mistake, when federal criminal law is complex? It’s not easy. Here are a few guidelines:
Rely, when possible, on people offering primary documents and links to citations and support.
Be skeptical of absolute certainty not backed up with proof. Be skeptical of pronouncements that there’s only one way a court will ever possibly interpret something.
Be more trusting of nuance, concessions of ambiguity and possible different interpretations, and exploration of opposing legal arguments. (Check out this post by Walter Olson as an example.)
This doesn’t mean you shouldn’t feel strongly about this case. I do. I’m furious. This indictment describes a course of conduct that should live in infamy for centuries, with Trump and his co-conspirators assuming their place in a pantheon of criminals, traitors, and anti-American miscreants for as long as the country endures. But Trump’s wrongdoing is fundamentally about not caring about truth, and only caring about power. Be better than Donald Trump. Care about the truth.
Josh, Sara and I will continue to cover developments in the Trump cases over at Serious Trouble. I invited you to subscribe to our podcast on your favorite podcast app, or follow the links at our Substack to do so.
Edited to add: Not all National Review writers are the same. To his credit, Noah Rothman Noah Rothman has written a dissent from the editorial making the same point about how it's wrong about the law.
On the other hand, some National Review writers are the same. When Andrew C. McCarthy, a former federal prosecutor who knows and understands the law, repeats the same legal deceit, he is absolutely and unequivocally lying to you.
So he fakes it. Trump is charged with defrauding the United States, even though it was just a few weeks ago — in throwing out convictions of two cronies of former New York governor Andrew Cuomo — that the Supreme Court reaffirmed that, in federal law, “fraud” means a swindle to bilk victims out of money or tangible property. It is not a vehicle by which prosecutors may impose their vision of good government.
Trump is charged with corruptly obstructing Congress, even though “corruption” for these purposes must comprise clearly unlawful acts such as evidence manipulation or witness intimidation, not speech that is constitutionally protected even if deceptive. He is, finally and absurdly, charged with a civil rights violation — a scheme to have votes discounted — based on a Civil War-era statute designed to address the Ku Klux Klan’s forcible attacks on and intimidation of Black voters.