On Tuesday, former President Donald Trump was indicted for his efforts to overturn the 2020 election results. The charges, brought by Jack Smith, a special counsel for the Department of Justice, specifically accuse Trump of conspiring to obstruct a government proceeding, defraud the United States, and deprive people of their right to have their votes counted. (A fourth count also pertains to the obstruction of a government proceeding.) To talk about the indictment, I spoke by phone with Mary McCord, the executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University and a former acting Assistant Attorney General for National Security. During our conversation, which has been edited for length and clarity, we discussed how Trump might try to fight the case against him, whether the prosecutors need to prove that Trump knew his claims about the election were false, and why the Department of Justice took almost three years on this case.
What interests you about these charges? And, moreover, do you understand why it was such a contested and debated question whether the former President’s behavior, however objectionable, broke the law?
I think the charges in the indictment are very well supported by the factual allegations. There is precedent for bringing cases under 18 U.S.C. 371, the conspiracy to defraud the United States, and under 18 U.S.C. 1512, the obstruction-of-an-official-proceeding charge, which has been used already against many of the January 6th rioters. And there’s a history of the Department of Justice using the 18 U.S.C. 241 offense, which pertains to the violation of civil rights, in cases where the counting of the vote has been hindered so that not everyone’s vote was counted. There’s good precedent for all of these charges that make them quite applicable to this conduct.
In terms of what I found really notable, though, I would focus on two things. One is the way Special Counsel Jack Smith is very careful to make clear that Trump had a right to speak publicly about the election and even to claim falsely that there had been outcome-determinative fraud, and that that in and of itself is not a crime. Yet, at the same time, the whole indictment shows that it was the lies and the disinformation about election fraud, the baseless claims of election fraud, that fuelled all of the illegal conduct that is alleged in the indictment. So I think it was a good way for him to be able to explain that lies and disinformation had a big role to play in the charges, but were not in and of themselves criminal acts. And I think that’s important, because people do talk a lot about First Amendment rights, et cetera. And this indictment is not infringing on any First Amendment rights. You can see, with respect to each aspect of the scheme, how it was driven by lies about election fraud, but that the scheme itself involved other conduct, which makes up the basis for the conspiracies.
I was actually surprised a little bit when I read the indictment, because I just didn’t assume that the stuff about him inciting the mob was going to be in there.
Well, I would entirely dispute what you just said, that you were surprised to see incitement to insurrection in there, because it’s actually not in there.
I didn’t mean that he was charged for it, but it’s still very present in the indictment.
No, I know, but it doesn’t use the word “incitement.” My second big takeaway is that the violence is in there. It’s not charged as incitement to insurrection, and it’s not charged as a solicitation of a crime of violence. But the violence is very much embodied, particularly in the section that talks about the pressure on Mike Pence, and then the concluding section that talks about using violence to put further pressure on members of Congress, even after they returned to the House—to object to some Electoral College ballots by doubling down on the fraud narrative and supporting violent rioters.
You see the President knowing that his own advisers and the Vice-President and the lawyers who worked for him all said that the Vice-President did not have the authority to reject the Electoral College ballots or to send the ballots back to the states, but he started just a sort of incessant series of statements and tweets telling the public that Mike Pence has the ability to do this. And then on January 6th he really agitates the crowd down at the Ellipse about what Mike Pence can do. So we very much get the sense of the President’s role in drumming up the violence, and his supporters at least perceiving this crescendo as giving them permission to engage in violence. But there’s not a charge related to it. And so there’s no real First Amendment issues here.
I want to talk about proving the President’s state of mind, which seems to be the most contested aspect of how to interpret this indictment. Can you explain why that’s so important, if you think it is important, and what you think prosecutors need to accomplish on this score?
Well, any time you’re talking about criminal charges, state of mind is important. In legal parlance, it’s mens rea, and there are very, very few crimes in the U.S. code that do not require a state of mind that involves the intent to commit the crime that you’re charged with. That’s called specific intent or even general intent. There are very few that say regardless of your intent, you can be held criminally culpable.
So the detail in the indictment shows that the President was advised multiple times by people working for him, by state officials, by his own Attorney General and Deputy Attorney General, that there was simply no factual basis to find that there had been any kind of election fraud on a scale that would be outcome-determinative. Of course, the former President has been trying for two and a half years to continue to say the election was stolen, I think in part to be able to make an argument, “This is what I truly believed.”
The indictment frequently uses the word “knowingly” about Trump when it refers to all these things he’s accused of doing. And, like you say, it presents evidence that a lot of people, people in his Administration, various secretaries of state, were telling him that his claims of fraud were wrong. But you could point to all kinds of things that his advisers told him time and again during the course of his Administration that were true that I think he probably sincerely does not believe. Now you could say, “Well, that’s because he’s an idiot,” or whatever else the reason might be. But the most striking part of the indictment may be where he tells Pence, “You’re too honest,” because that was a sign of him really understanding that there’s something wrong with this. The other examples didn’t seem to me to necessarily show that.
There are other things like the Pence example in there. But, remember, this is ultimately going to be a question for the jury to determine. Did he honestly believe there was fraud in the election, or is that just an excuse right now to not only try to get reëlected and campaign on that but also to try to avoid criminal responsibility? And so that’s one of the reasons you see time after time in the indictment the fact that he was told by all of his closest advisers, by the investigators actually investigating these claims, that there was no merit to them. You can’t stick your head in the sand and ignore all of the evidence and say, “I had a firm belief.” I mean, you could do that, but it’ll be up to the jury to determine.
There are other examples in the indictment where he does seem to reveal that he was aware that the claims of fraud were overblown, or that what people like John Eastman were telling him he could do was not, in fact, lawful. One is the comment you raised about him saying to Mike Pence, “You’re too honest.” But there’s also another time where he’s given the option by John Eastman, and someone else tells him, “There’s not actually authority for this.” And he says, “Well, I like what that guy said anyway.” So there’s another tell that he’s aware.