The Trump indictment, filed Tuesday, charges three counts of conspiracy and one substantive count of obstruction.
Under the brave new theory of criminal liability set forth in the election conspiracy indictment of former President Donald Trump, former Vice President Al Gore and the members, advisers, and lawyers of his 2000 presidential campaign belong in prison. The same goes for actor Martin Sheen and other Hollywood celebrities for their actions in the wake of the 2016 election.
Let me explain.
The indictment, filed Tuesday, charges three counts of conspiracy and one substantive count of obstruction related to an alleged effort to overturn the outcome of the 2020 election. The indictment avers that this effort was based on “dishonesty, fraud, and deceit” because Trump and his unindicted co-conspirators knew that their claims of election fraud were untrue. ( Donald Trump Indicted Yet Again)
The indictment magnanimously allows that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.”
But Trump supposedly violated the law by acting on those false claims. He and his co-conspirators allegedly became felons by urging state officials to search for voter fraud, proposing substitute electors in swing states, and attempting to persuade then–Vice President Mike Pence that he could legally refuse to count certain electoral votes when he presided over the Electoral College on Jan. 6.
Although the indictment acknowledges that none of these efforts were successful, it nevertheless avers that they constituted “three criminal conspiracies,” to wit:
A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified….
A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified….
A conspiracy against the right to vote and to have one’s vote counted.
To put it mildly, this indictment stretches the law of conspiracy to the breaking point and beyond. It effectively criminalizes constitutionally protected political discourse and election challenges.
