The big threat to democracy: Trump’s actions or Trump’s indictment?

Op-ed views and opinions expressed are solely those of the author.

Per his recent indictment, Donald Trump made an awkward, blundering, and unsuccessful attempt to delay the formal January 6, 2021, election certification by Vice President Mike Pence. His strategy was based on a “creative” legal playbook, which more sober observers have termed “crackpot.” But is this unskilled grievance advocacy the danger to democracy the indictment so stridently declaims?

Special counsel Jack Smith, seemingly sober and diligent, prepared this unusually detailed, 45-page “speaking” indictment, featuring the vast array of advisors and officials, in D.C. and the seven affected states, who told Trump he had lost and Biden had won. He even quoted Trump as admitting that Biden was the “next guy” to be President. Moreover, according to Smith, Trump pushed false and misleading slates of “fake” or “false” electors, while he knew that another slate had officially won and been certified in each of the seven states.  

Several legal commentators have been quoted by the media as solemnly intoning that, yes, there is a right to free speech, but speech uttered to pursue a crime is not protected. For instance, Tony Soprano’s order to whack a rival is not protected speech. But wasn’t this speech designed to petition for redress of grievances, protected by the First Amendment?

These assertions have been paired with the abstract notion, virtually inscribed in stone, that no one should “subvert” our “democracy” by overturning the will of the people as expressed through “free and fair” elections.  

Shouldn’t this indictment mean, then, as many media outlets assert, that Trump deserves a long stretch in an orange jumpsuit?

At first blush, the answer appears to be yes. Unless, of course, these media commentators were to engage in minimal critical thinking. If they had reflected intelligently at all, they would have faced some confounding, troubling truths about this seemingly high-toned, but actually chilling, indictment.  

First, the basics.  Should any reasonable person conclude that Trump did not believe he had won the election, notwithstanding the reported results?  Of course not.  

Certainly, Trump was not relying substantially on the odd theory that the Dominion voting machines were manufacturing Biden votes.  Rather, he knew that counted votes favored Biden.  He simply believed that many ballots should not have been counted, because they were falsely harvested, not signed by true voters, were of citizens who had moved out of state or died, were cast by noncitizens or were illegitimate for other reasons.

But, as the chin-stroking commentators for CNN have pointed out, there were over thirty lawsuits, state and federal, seeking to overturn the reported state results, all unsuccessful.  So don’t these unsuccessful lawsuits sink Trump’s arguments?  

No. Each one of these suits was deemed in essence nonjusticiable, that is, not one was allowed to proceed to trial on the merits.  None of these adverse opinions claimed to have made a finding of fact that there were more fair, qualified votes for Biden. Rather, the suits all sought a Court ruling to throw out the results, either summarily or after trial, which each Court properly abstained from doing.  Indeed, as we have written on numerous occasions, courts are not equipped to relitigate multimillion-vote elections, an absurd burden on our judicial system.  If the elections are not run with safeguards employed on-site or in the mail-in process, these are matters for reform, perhaps in an egregious case for overturning at the state legislature level, but not subject to judicial review.  The limited power of courts is normally restricted to ordering vote recounts in exceedingly tight elections, but nothing more. So an unsuccessful suit does not prove that the election at issue was actually a fair and free expression of democratic will.

But Trump to his discredit did not marshal forces at the state level before December 14, 2020, when the states certified their results.  Following this failure, law school professor John Eastman reportedly advised Trump to offer “alternate” slates of electors to be potentially certified should Trump’s protest be upheld by the Vice President or the Senate, perhaps with the direction to remand the issue to each state legislature.  

But does any sane person believe that Trump was trying to fool Pence and/or the Senate that these slates represented certified votes?  Certainly, he was not claiming these slates had been approved by any of the contested states.  

Here is the question: can a candidate, who in good faith thinks he has lost an unfair election, petition his government to redress his grievances, citing arguments which the apparent winners deem irrational?

Al Gore’s challenge in 2000 is put forth as a shining example of how Trump should have folded his democratic tent once his supporters lost their cases.  But that view requires a funhouse mirror.  Gore’s protests, because they involved simple vote recounts which courts can order, were, unlike Trump’s, claims by statute and precedent within the courts’ jurisdiction.  His protests were ultimately decided by the U.S. Supreme Court, overturning the Florida Supreme Court.  But Trump, in contrast, did not have a judicial option, as the many lawsuits correctly decided, nor should he have had one.

But of significance here, Gore’s initial protests were wildly wrong.  He initially made an outrageous claim of anti-Jewish discrimination in Broward County, which proved delusional.  Eerily reminiscent of the Dominion voting machine claim, he asserted that the voting machines did not count votes correctly, a claim that he was allowed to try in court, unsuccessfully.   So, beyond the simple recount, which included “dimpled” and “hanging” chads, Al Gore’s claims can today justifiably be termed irrational and objectively “false,” but he, unlike Trump, had a tribunal to hear them.  Did Gore have the right to make these absurd claims?  He certainly did. And we all should be proud our system entertained them, because they provided for democratic dissent and ultimate closure.  

Putting aside Trump’s more ridiculous claims, were there principled issues arising out of the 2020 election which our country should have discussed then, and should be debating today, in preference to this indictment?

Yes, most definitely.  There are still lingering and troubling questions about the security of our election processes.  The September 30, 2020, Atlantic Magazine article entitled How Voting By Mail Could Cost Biden The Election details the statistical historical norms, by percentages of disqualified votes, in key urban areas.  With the expected surge of new, young and inexperienced mail-in voters, these percentages of disqualified voters should, according to the Brookings Institution expert quoted, rise, costing Biden the election.  For instance, in 2019, over 6% of urban Philadelphia voters failed to place their ballots in a secure outer envelope, thereby disqualifying these votes.  Again, this percentage, like others in urban areas, was expected to rise. 

But what occurred was confounding and troubling, because these percentages of disqualified ballots plummeted inexplicably.  A good argument could be made that this profound decrease was the result of a combination of negligent maladministration, caused by the pandemic’s overwhelming surge of mailed votes, and intentionally lax acceptance of the proffered votes.  The New York Times quickly acknowledged this issue post-election, albeit in muted form, then immediately dismissed it. No other major media outlet even commented on it. 

Many citizens, acting in good faith, have questions of different sorts.  But because of Smith’s indictment, anyone raising these valid democratic concerns, directed to ensuring fair elections and avoiding banana republic voting mayhem, are now intimidated, their free speech “chilled.” 

So, who is the enemy of democracy here?  Who is subverting democratic norms?  Answers point not to the wild, boisterous “orange man” but, rather, to the sober Smith and his 45 page “Big Lie” allegations, designed not just to punish the opposing candidate, but also more broadly to squelch views of honest citizens concerned about the fairness of our elections.  

This suppression had been spurred no doubt by Attorney General Merrick Garland and Joe Biden, who reportedly had urged Garland to take the gloves off.  In addition to restricting free speech, many citizens understandably feel that the indictment is a political weaponization of the system. Trump’s rise in the polls as a result is a direct reflection of democratic outrage at what is perceived to be the Biden/Garland/Smith mugging of an opposing politician, one who was channeling, however unskillfully, democratic election protest.  

Trump’s arguable lack of judgment and temperament, as exemplified by January 6, should have been a major issue in the race for the Republican presidential nomination for 2024. But thanks to Smith’s Biden-induced indictment, that issue is overshadowed by the suppression of speech of all conservative-leaning citizens.

Most Americans were sickened to outraged when a white police officer smugly pushed his knee on George Floyd’s neck. Floyd may have been a petty criminal, but this life-endangering punishment did not fit the crime, and was not administered through legal process.  Our Founding Fathers warned against the inherent danger of a democratic populace becoming inflamed by passion, the ensuing riots being a case in point.

It may not be quite a fair analogy to say that Jack Smith has his knee firmly on Trump’s neck, but that is how many in our society will perceive this indictment. It is therefore not a stretch to say that it is a threat to democracy far greater than the bluster of a candidate who had lost a close, idiosyncratically administered election during a chaotic pandemic.  


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John D. O'Connor


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