The third Trump indictment feels like the main event, but that’s what’s wrong with it. It’s not about crime, it’s about fundamentally political misconduct. Set aside, for the moment, debates over the evidence of Donald Trump’s state of mind and the proper scope of the statutes involved. The deeper problem with bringing this case as a federal criminal prosecution is finding anything in it that looks like a traditional criminal act.

The reason this indictment feels momentous is that it lays out a wholly damning course of conduct that leaves no doubt: Trump acted with utter contempt for the truth, the law, and the integrity of our system of government. His stew of lies and rage unquestionably give him moral and political responsibility for everything that happened on January 6. I argued this at the time and concluded that the Senate should convict Trump — indeed, the House should have impeached him, and the Senate should have removed him from office and barred him from public life, before the smoke cleared. He should not just be disqualified from seeking public office again; he should be shunned from decent society. These are moral and political judgments, and he has richly earned them.

But look throughout this indictment, which promises us “unlawful means”: Where’s the unlawful act by Trump? Read the verbs used: “spread lies,” “publicly repeated,” “issued a Tweet,” “called,” “lied to,” “held a meeting,” “publicly maligned,” “re-tweeted,” “encouraged supporters,” etc. All of this stuff is the regular work of politics. The law, of course, can properly criminalize things done through politics, and through public and private speech, but the fact that the entire indictment consists of such things is an immediate red flag that we’re on dangerous ground in constitutional terms (under the First Amendment), in criminal terms (given the absence of any specific, illegal act), and in the sort of sober judgment that ought to inform such a grave step as indicting a former president of the United States who is presently running a serious campaign to regain the office.

The closest thing to a specific crime is in paragraph 30:

On December 31, the Defendant signed a verification affirming false election fraud allegations made on his behalf in a lawsuit filed in his name against the Georgia Governor. In advance of the filing, Co-Conspirator 2—who was advising the Defendant on the lawsuit— acknowledged in an email that he and the Defendant had, since signing a previous verification, “been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate” and that signing a new affirmation “with that knowledge (and incorporation by reference) would not be accurate.” The Defendant and Co-Conspirator 2 caused the Defendant’s signed verification to be filed nonetheless. [Emphasis added.]

If Jack Smith aimed to get a clean, easy prosecution of Trump, he could have charged him with making a false court filing. Why didn’t he? I suspect he doesn’t have terribly strong evidence of knowing falsehood, or of the material falsity of the allegations to the court case.

Otherwise . . . that’s it. Most of the rest of the indictment concerns lies about the election, overaggressive or implausible legal theories, and political pressure. Vile as all this stuff is, it’s the stuff of politics, not crime. Smith tries to hold Trump responsible for the conduct of the six unnamed co-conspirators by charging a conspiracy, but the indictment’s allegations of their conduct is not much different. The Eastman memos may be dreadfully bad law, but if we’re now indicting people for dreadfully bad law that’s deployed to abuse power or mutilate the Constitution, Joe Biden and half his cabinet are going to jail, too. It used to be understood that some efforts to abuse the truth, the courts, and the political process were at most matters for the civil law, or for political judgment. The Justice Department has now opened a Pandora’s box that will be hard to close.

Smith has two specific gambits that suffer from particular legal defects. The first is that he makes a big deal out of efforts to get Trump electors to meet and have their votes filed with the National Archives and used in Congress. I explained the legal problem with this theory a year and a half ago: Under multiple long lines of Supreme Court and federal and state appellate court decisions, in just about every federal or state rule against fraud and misrepresentation, the false statements must be material, and that means they must have had the capacity to deceive. This is the same problem at the heart of Alvin Bragg’s indictment of Trump for false statements in a document he never intended anyone to see. The crucial capacity to deceive is simply not there when you tell people a lie but they already know the truth, or when they can easily ascertain the facts for themselves. In the case of the “fake electors,” their electoral votes were cast in public, and everybody in the country knew that they were not the slates of electoral votes approved by any arm of state government. As I wrote in January 2022:

Prosecutors may argue that the existence of the false certificates was material because they were used as a pretext by those who objected to Biden’s certification. But the reality is, everybody involved in the process knew that these were not real certificates backed by a governor, a legislature, or any arm of a state government, or representing the outcome of the actual popular vote in those states. That was all out in the open, and widely reported at the time, in press reports I summarized as they happened. . . .

The Nevada electors cast their “votes” in a live event streamed on YouTube. This is unlike, say, casting a fraudulent ballot that disappears into the pile of legitimate votes; the denial of reality was open and notorious, and the vice president and the majority of both houses of Congress saw right through it. . . . The simple reality is that everybody knew these were not real certificates just because they were sent to the National Archives.

Smith’s second move is to try to tie Trump legally to the storming of the Capitol. The people who actually breached the Capitol have been prosecuted, and properly so — but the Department of Justice has previously not even attempted to argue that any of them conspired with Trump. To the contrary, it has argued in court against the contention that rioters believed they were acting lawfully because they were following the orders of the president of the United States.

Inconsistency aside, this, too, is legally defective because it falls well short of the constitutional standards for incitement under Brandenburg v. Ohio — Smith barely even tries to suggest otherwise. As I warned some time ago:

There is a crucial difference in the law between engaging in an insurrection and simply saying things that encouraged people to engage in one. The criminal-law standards for incitement are very demanding, and rightly so in a society that values robust political speech. . . . What about obstructing, influencing, or impeding the joint session to count the electoral votes? At some point, charging a political leader with trying to influence a political process creates some fairly grave constitutional issues. . . . The constitutional concerns about the rights of speech and petition are more easily resolved when Section 1512 is used against people who actually used force or illegally breached the building and caused the session to halt. There is always some legal line between speech and physical force or physical obstruction.

It will be difficult to get a legal ruling in Trump’s favor on much of this in advance of trial, but this indictment should never have been brought, and in due time, we will all come to regret that it was.