FILE - Former President Donald Trump listens as he speaks with reporters while in flight on his plane after a campaign rally at Waco Regional Airport, in Waco, Texas, Saturday, March 25, 2023, while en route to West Palm Beach, Fla. The outcome of past cases against defendants accused of hoarding classified documents loom as an ominous guidepost for the legal jeopardy Donald Trump could face. The former president pleaded not-guilty on Tuesday, June 13, to charges including willful retention of national defense information under the Espionage Act. (AP Photo/Evan Vucci, File)
At last. The federal criminal justice system is going to legal war against one of the most dishonest, malicious and damaging conspiracies in the history of the United States. Tuesday’s indictment of Donald Trump, brought by special counsel Jack Smith’s office, is the culmination of a comprehensive effort to bring justice to those who attempted to overthrow the results of an American presidential election.
In the months and years since the violent insurrection on Jan. 6, 2021, the legal system has switched from defense to offense. With all deliberate speed, prosecutors first brought charges against Trump’s foot soldiers, the men and women who breached the Capitol. Next, prosecutors pursued the organizers of Trumpist right-wing militias, the Proud Boys and Oath Keepers, who had engaged in a seditious conspiracy to keep Trump in the White House.
And now, Smith is pursuing Trump himself — along with six yet unnamed co-conspirators — alleging criminal schemes that reached the highest level of American government. This is the case that, if successful, can once and for all strip Trump of any pretense of good faith or good will. But make no mistake, the outcome of this case is uncertain for exactly the reason it’s so important: So very much of the case depends on Trump’s state of mind.
First, it will be necessary to prove what Trump knew. Second, it will be necessary to prove what he did. Let’s take, for example, the first count of the indictment: 18 U.S.C. Section 371, conspiracy to defraud the United States. The statute is designed to criminalize any interference or obstruction of a “lawful governmental function” by “deceit, craft or trickery.”
There’s little doubt that Trump conspired to interfere with or obstruct the transfer of power after the 2020 election. But to prevail in the case, the government has to prove that he possessed an intent to defraud or to make false statements. In other words, if you were to urge a government official to overturn election results based on a good faith belief that serious fraud had altered the results, you would not be violating the law. Instead, you’d be exercising your First Amendment rights.
Thus, it becomes all-important for the prosecution to prove, beyond a reasonable doubt, that Trump knew he lost.
That’s precisely why this case is so important — more important than any previous Trump indictment. If the prosecution prevails, it will only be because it presented proof beyond a reasonable doubt that the election fraud claims that a substantial percentage of Americans still believe to be true were not only false but were also known to be false when they were made.
I am not naive. I know that not even a guilty verdict will change the perceptions of many of Trump’s most loyal supporters.
At the same time, however, a successful federal trial would strip Trump’s defenders of key talking points — that his voter fraud and vote manipulation claims have never been fully tested, that the House Jan. 6 committee was nothing but a one-sided show trial and that a proper cross-examination would expose the weakness of the government’s claims. Trump will have his opportunity to challenge the government’s case. His lawyers will have the ability to cross-examine opposing witnesses. We will see his best defense, and a jury will decide whether the prosecution prevails.
The case is no slam dunk.
Yet if a prosecutor believes — as Smith appears to — that he can prove Trump knew his claims were false and then engineered a series of schemes to cajole, coerce, deceive and defraud in order to preserve his place in the White House, it would be a travesty of justice not to file charges.
Millions of Americans believe today that Joe Biden stole the presidency. They believe a series of demonstrable, provable lies, and their belief in those lies is shaking their faith in our republic and, by extension, risking the very existence of our democracy. There is no sure way to shake their convictions, especially if they are convinced that Trump is the innocent victim of a dark and malign deep state. But the judicial system can expose his claims to exacting scrutiny, and that scrutiny has the potential to change those minds that are open to the truth.
Smith has brought a difficult case. But it’s a necessary case. Foot soldiers of the Trump movement are in prison. Its allied militia leaders are facing justice. And now the architect of our national chaos will face his day in court. This is the trial America needs.
David French is a New York Times columnist.
Originally published at David French