7 Takeaways from the Trump Conspiracy Case
This is not a free speech case, a state-of-mind case or a hard-to-win case — and it will likely be tried before the election
As news flashed of Donald Trump’s indictment in the January 6th conspiracy case, my wife Emily and I were babysitting for our granddaughter, Rosie, now 20 months old. Without expecting it, I suddenly experienced a burst of hope about her future. Rosie and her generation will experience plenty of challenges, especially on climate. But one of the biggest — the struggle to preserve American democracy — just got a little more manageable.
If Trump is not returned to office next year— a big “if,” considering that recent polls show him tied with Joe Biden — I think we’re gonna be OK.
Two years ago, after the Senate failed to convict Trump and craven Kevin McCarthy threw him a lifeline, I was bearish on the future of democracy. While the courts in late 2020 had rejected all of Trump’s bogus election fraud claims, the incentives were still wrong. It wasn’t just that Republicans had become authoritarians; they seemed to pay no price for doing so. It looked depressingly likely that every close election for the foreseeable future would be challenged by Republicans if they lost. That’s how democracies die.
Two big and good things have happened since, with a third in the offering. First, Nancy Pelosi, Bennie Thompson, Liz Cheney, Adam Kinzinger, Jamie Raskin and other patriots in the House outfoxed the hacks and autocrats on the other side and put together arguably the most effective congressional committee in U.S. history. It educated the country on Trump’s coup plot (so this indictment doesn’t seem to be coming out of nowhere) and prodded the Justice Department to get off its ass.
Then, in the most important results of the 2022 midterms, the fake electors crowd in the states got beat. Every anti-democratic candidate for secretary of state — the office that would allow them to refuse to certify returns and throw presidential elections into the Republican-controlled House — lost badly. And the Electoral Count Act was revised to prevent certain 1/6-style shenanigans.
Now comes the indictment of Trump, with prosecution of his co-conspirators just a little down the road. Even if the whole bunch of them get acquitted (which is unlikely), they will have all gone through the special form of hell reserved for defendants in criminal cases. Throw in the disbarment proceedings faced by several Trump lawyers and the incentives are now more properly aligned.
So imagine it’s 2024 or 2028 or 2032 and some MAGA dead-ender wants to overturn an election at the federal, state or local level. He or she and their lawyers are now on notice that they better damn well have some evidence of fraud or voters and prosecutors will punish them for their transgressions. Memories are short and before long, a Trump wannabe will come along and try again to attack our democratic norms. But at least the good guys have laid down a marker.
A rogue juror letting Trump walk in the conspiracy case would not spoil this effect. With accountability, it’s often the effort that counts.
This helps abroad, too. American democracy inspires free people everywhere. Just as Trump’s sordid presidency gave heart to Putin, Orban, Bolsinaro, Duterte and other thugs, Joe Biden flying the banner of democracy and strengthening NATO will weaken dictators and bolster self-government around the world.
So with that, let’s look at seven early takeaways from this momentous case:
1. This is the most important criminal case in American history
On Tuesday, several news organizations headlined their stories: “Third Indictment of Trump.” That’s true but off-the-mark. Yes, it’s relevant that this is Trump’s third time in the dock and no prior president or former president has been indicted even once. And yes, putting this case in the context of the other criminal indictments (with a fourth expected shortly in Georgia) suggests that Trump, as Chris Christie put it, is a “one-man crime wave.” But, amazingly enough, that is of secondary importance.
Why? Because this case is so much bigger than hush money or even pilfering classified documents and not returning them. It’s about the sine qua non of democracy, the tradition at the center of the founders’ vision — the peaceful transfer of power, which had only been interrupted once before in American history, by secessionists in 1861.
There has never been — and, with any luck, never will be — another American criminal case of this importance. It is bigger than even the most sensational murder trials. This is not about someone killing someone, but a would-be tyrant trying to kill a political system that for 234 years has kept the United States a stable republic that inspires people around the world.
The only comparable case might be when Aaron Burr was tried and acquitted of treason in 1807. But Burr was only a former vice-president.
2. This trial will likely take place before the election
It’s hard to imagine Judge Tanya Chutkan — a well-regarded judge unanimously confirmed by the Senate — brooking much delay. It’s true that federal cases in Washington, D.C. often take 18 months or longer to go to trial, but there is a strong public interest in this one moving forward quickly — and on television. Chief Justice John Roberts won’t likely allow that but we know that Judge Chutkan’s record inspires confidence. In another Trump 1/6 case, she rejected a motion by Trump’s lawyers with the line, “Presidents are not kings.”
Under the Speedy Trial Act of 1974, trials are supposed to take place within 70 days of arraignment. The usual grounds for a continuance — complexity, multiple defendants, the need for lengthy discovery — don’t apply here. Many of the legal issues that Trump’s attorneys will raise have already been adjudicated and the appellate court and Supreme Court will likely review new appeals on an expedited basis.
Manhattan District Attorney Alvin Bragg recently said he was flexible about a March, 2024 trial date for the Stormy Daniels hush money case.
It’s a good bet that the Trump conspiracy trial will start around then, in a venue — Washington, D.C. — favorable for conviction.
3. This is not a witch hunt
Trump will scream “witch hunt” at every opportunity and he is already comparing “Deranged Jack Smith” to a Nazi, which is usually a sign of desperation. Millions of gullible Republican voters will nonetheless buy this line. But will independents? They’re the ones who will determine the election and they will — at least some of the time — look at the facts.
If the case was a witch hunt, why will every major witness for the prosecution be a Republican who worked for or strongly supported Trump? Former Vice President Mike Pence, former Attorney General William Barr, former Arizona House Speaker Rusty Bowers, Georgia Secretary of State Brad Raffensperger — the list goes on and on. All of these Republicans will deliver damning testimony.
4. This is not a tough case
It’s unprecedented, yes, and a lot can go wrong at trial, especially in such a heavily-politicized environment. But think about what will actually happen in the courtroom. Who will the defense witnesses be? Even Trump’s own family couldn’t defend his conduct on January 6th. Jared Kushner apparently told the grand jury that his father-in-law sincerely believed he won the election, but that testimony—if it takes place— won’t land especially hard. And legal experts testifying to John Eastman’s legal genius (to justify Trump listening to him) are easily rebutted.
The prosecution, by contrast, will have not just a bunch of Republican witnesses but a lot of gut-wrenching testimony from people like Ruby Freeman, the Georgia election worker whom Trump falsely accused of fraud. She and Trump’s other victims will describe how they had to leave their homes temporarily amid multiple death threats. We can expect that to be more impactful on the jury than, say, Roger Stone’s testimony.
5. This is not a free speech case
Trump’s main line of defense will be that it’s a free country and he was just expressing his opinion. A few lame lawyers like Jonathan Turley — who testified on Trump’s behalf during the first impeachment trial — will likely be called to bolster his First Amendment claims.
The indictment anticipates this and carefully explains why this is not about Trump’s legitimate right to lie and say hurtful things. But there is well-established case law on where defendants cross the line from free speech to criminal conduct. Threats, for instance, are not protected by the First Amendment. Nor are acts of fraud. Trump crossed that line repeatedly, and the jury will know it.
6. This is not a state-of-mind case
The vice president, two attorneys general, the director of national intelligence, the secretary of homeland security, White House attorneys, Trump's campaign manager (Bill Stepien, who may be cooperating), several Republican state officials and dozens of state and federal judges all told the president there was no evidence of “outcome-determinative” fraud in the 2020 election.
While the prosecution has the overall burden of proof, Trump’s attorneys will have to show that their client had good reason to think he won. That means bringing unfounded conspiracy theories into the courtroom. Even if the judge somehow allows Trump witnesses to go down this road, they will get destroyed on cross-examination.
The test will not be whether Trump, like all great con men, believed his own con. Of course he did, somewhere inside that lizard brain. If con men could avoid conviction by believing their own cons, no fraudsters would ever go to jail. But plenty do. Instead, the evidence in the case will revolve around whether Trump, as alleged in the indictment, “deliberately disregarded the truth” even after it was repeatedly presented to him by Republicans inside his own government.
7. This case is a character test for every Republican official
Every so often, we are forced to ask moral questions of ourselves: Who are we? What do we really believe? Voters are busy people who can be excused for not paying attention. But GOP officials now have a binary choice: Country or party? Democracy or autocracy? The peaceful transfer of power or the Big Lie?
We already know that most Republican politicians have flunked this test and will be condemned by history. It’s still unclear whether jurors in this case and voters at the polls will repudiate these people in a way that protects Rosie and the rest of us from the legacy of this dangerous man. This week, I’m hopeful they will.