The indictment of former President Donald Trump for fighting the results of the 2020 election misses facts that could change the perceived meaning of the events in question.
Focusing on Mr. Trump’s actions in the aftermath of the 2020 elections, Mr. Smith tells the story in five parts:
First, he alleges that Mr. Trump knew his allegations of election fraud and other illegalities in the election were false. He presents evidence that people close to Mr. Trump repeatedly told him that a number of allegations he brought up were false or inaccurate, but Mr. Trump continued to mention at least some of those claims.
The notion that Mr. Smith appears to have failed to entertain is that Mr. Trump didn’t believe the people who tried to debunk some of his claims. The indictment portrays Mr. Trump as specifically seeking counsel of those who affirmed his belief and offered him ways to pursue it.
The indictment doesn’t address the fact that Mr. Trump has been both publicly and privately consistent in his belief that victory in the election was stolen from him, even if he may have been ultimately convinced by others that any number of the specific allegations were untrue.
Nonetheless, the rest of the indictment builds on the premise that Mr. Trump has been disingenuous in his proclamations regarding the election.
Mr. Smith portrays Mr. Trump’s effort to have state officials investigate the election results as corrupt. He gives the example of Mr. Trump’s call with Georgia secretary of state, Brad Raffensperger, on Jan. 2, 2021.
The indictment follows the narrative built on the initially selectively leaked information about the call, alleging that Mr. Trump asked Mr. Raffensperger to “find” him enough votes to overturn the election.
“So what are we going to do here folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break. You know, we have that in spades already,” Trump said during the call.
The indictment then took aim at efforts by Department of Justice (DOJ) official Jeffrey Clark to have the DOJ leadership send out a memo acknowledging serious problems with the election. The DOJ leaders refused to do so, saying they saw no problems serious enough to overturn the election. Mr. Trump talked to Mr. Clark privately several times and considered firing the DOJ leadership and appointing Mr. Clark as acting attorney general. He was ultimately dissuaded from that idea.
Mr. Smith alleged that Mr. Trump corruptly tried to use the DOJ to bolster his claims. He didn’t explain, however, what the DOJ actually did to investigate the cornucopia of allegations regarding the election. To this day, there’s a dearth of public information on what the DOJ did and didn’t investigate.
The indictment puts major emphasis on the efforts of Mr. Trump and his associates to establish alternative slates of electors in several states where Mr. Trump contested the results. Mr. Smith alleges that Mr. Trump’s associates deceived the alternative electors by telling them that their votes would only be used if Mr. Trump was to prevail on his challenging the elections in court.
In fact, the authors of the strategy, lawyers John Eastman and Kenneth Cheseboro, presented several options: One was that Mr. Trump would indeed prevail in court by the Jan. 6, 2021, deadline and the alternative electoral votes would indeed be counted, just as happened with the Hawaii electoral votes in 1960.
Another alternative was that when Vice President Mike Pence would count the electoral votes on Jan. 6, he would use the alternative slate of electors as a reason to send the votes back to state legislatures to resolve which slate was the correct one.
Yet another options was that the vice president would refuse to count the votes from states with the alternative slates and would declare the winner based on the remaining votes, which would have handed the victory to Mr. Trump.
What Mr. Smith omits is that the scenarios Mr. Eastman and Mr. Cheseboro presented were based on their reading of the Constitution, which doesn’t specify a mechanism for resolving conflicting sets of electors. Congress attempted to resolve the issue through the Electoral Count Act of 1887, which does specify such mechanisms, but some legal experts have argued that the law is unconstitutional because Congress is supposed to merely observe the counting and cannot usurp power over it.
“Whether or not Vice President Pence had the constitutional authority to determine that certain slates of electors were invalid remains an open question,” he said.
The indictment details Mr. Trump’s effort to convince Mr. Pence to either reject the official elector slates or delay the proceedings. It noted that during one conversation Mr. Trump told Mr. Pence he preferred the option where the vice president rejects the contested electors and declares him the winner. On every occasion, Mr. Pence refused both options.
According to Mr. Eastman’s op-ed, Mr. Trump in the end didn’t ask Mr. Pence to reject the contested votes, but rather asked him to delay the proceeding to let state legislatures reconvene and pass their judgement on the votes.
“The vice president was apparently advised that he was obligated to allow a count of questionable elector votes to proceed because a minor subsection of the Electoral Count Act of 1887 provides that the ‘joint meeting [of Congress] shall not be dissolved until the count of electoral votes shall be completed,’ and that no recess could be taken except for the separate houses of Congress to decide upon any objections that were raised,” he said, suggesting that breaking that provision would have been acceptable “to give the state legislatures time to ensure that illegal electoral votes did not determine the election of the next President of the United States.”
Mr. Smith makes the case that pressing Mr. Pence to violate the Electoral Count Act in this manner amounts to criminally obstructing the government.
The special counsel finally suggested that Mr. Trump encouraged violence during the Jan. 6, 2021, Capitol protest. He referred to Mr. Trump’s speech that day, during which he said he hoped the vice president would come through and “send [the electoral votes] back to the states to recertify” and urging the crowd to “fight like hell.”
However, Mr. Smith failed to mention that Mr. Trump also urged the people to express their sentiments “peacefully and patriotically.”
