NRPLUS MEMBER ARTICLE D emocratic Ahabs finally caught their Moby Dick. This past week, former President Donald J. Trump appeared before a federal judge to answer for crimes surrounding the January 6 attack on the Capitol. Despite public fatigue with Trump’s many legal problems, Americans should not misreckon the gravity of the case. This is the most important criminal trial in the history of the Republic. But like in the great Herman Melville novel, the pursuit of the great white whale might end up dooming the voyage, not the whale.
The stakes could not be higher. Federal prosecutors have charged a former president with trying to prevent the peaceful transfer of power. Our legal system has not confronted such a serious criminal accusation since the Jefferson administration prosecuted former vice president Aaron Burr for treason in 1807. President Richard Nixon resigned rather than face removal through impeachment, and President Gerald Ford pardoned him. Even the Republican victors in the Civil War declined to charge Confederate president Jefferson Davis, and the Founders did not prosecute loyalists after the Revolution.
With charges unlike any in American history, the Justice Department must present a watertight case on both the facts and the law. If the United States is to use the criminal law for the first time to punish a former president for seeking to remain in power, it cannot railroad the defendant — even someone as allegedly bad as Donald Trump — on circumstantial facts and extravagant legal theories. A verdict based on loose facts and flimsy law will leave many doubtful of the conviction and more distrustful of the Justice Department and the criminal-justice system, especially at a time when public trust in our institutions is already in decline.
Unfortunately, special counsel Jack Smith has failed to deliver the sound case that our nation sorely needs. This is not to defend Trump’s actions on January 6. Smith’s indictment makes clear, if television and press reports at the time and congressional hearings last year did not, that Trump attempted to change the outcome of an election he clearly had lost. Trump and his outside allies pressured state legislatures to adopt alternate slates of electors and demanded that Vice President Mike Pence use his role as presiding officer over the opening of electoral ballots to return the votes from close states such as Arizona, Georgia, Michigan, and Pennsylvania. As these ramshackle efforts failed, Trump gave a fiery speech at the White House that may or may not have inspired rioters to attack the Capitol and caused the suspension of the electoral-vote count until the early hours of January 7. For this, the House of Representatives impeached Trump, but the Senate properly refused to convict because he had already left office and was no longer subject to removal.
But the special counsel builds a shaky case on these facts. Smith’s public announcement of the indictment, which focused on the violence of the January 6 attack, gave the impression that he had uncovered links between Trump and the leaders of the riots. He has not, at least not yet. The indictment does not claim that Trump’s fiery speech on the Ellipse on January 6 incited the riot because such speech would most likely receive First Amendment protection. Trump also said in his January 6 speech that “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
Nor does Smith mention the two obvious criminal provisions that would address an actual illegal effort to stop the peaceful transfer of power. He does not charge Trump with “insurrection against the authority of the United States or the laws thereof,” even though Democrats and other critics have claimed that January 6 represented such an attack on the government. He does not bring forward an indictment for seditious conspiracy, which forbids planning “to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them,” and further makes criminal efforts “by force to prevent, hinder, or delay the execution of any law of the United States.”
Instead, the special counsel charged Trump with four counts: (1) conspiracy to defraud the United States; (2) conspiracy to obstruct an official proceeding; (3) obstruction of and attempt to obstruct an official proceeding; and (4) conspiracy against rights. These criminal-law statutes were not designed to prevent or punish challenging or overturning election results.
The biggest weakness in Count 1, a prosecutor’s favorite “catch-all” charge, is the lack of financial fraud. Supreme Court cases beginning in 1987 with McNally v. United States and ending with this past term’s Ciminelli and Percoco cases hold that “defrauding the United States” requires the defendant to have fraudulently swindled money or other tangible property out of the U.S. government. As Andy McCarthy raised as early as May, efforts to change the election results do not meet the Court’s requirement that fraud involve traditional property interests.
Counts 2 and 3 similarly stretch the law. Congress amended the obstruction statute in the wake of the Enron scandals to punish witness tampering or document destruction that interferes with a congressional investigation. Even if the obstruction law included political and constitutional maneuvering — however outrageous — it still requires that the defendant acted “corruptly.” The government must prove that Trump believed or knew that he had lost the 2020 election and still tried to deceive others into blocking the Electoral College count anyway. It does not matter whether the average reasonable person in Trump’s shoes would believe that he lost, nor whether Trump’s advisers apparently believed he had lost. What matters is Trump’s own state of mind. Did he actually know he lost and then proceed to pressure and deceive others to advance his corrupt scheme? Did he reasonably rely on lawyers who told him he could influence legislators to change their states’ electoral votes or demand that Mike Pence reject electoral votes from the states in question? The special counsel will have to mount circumstantial evidence that can overcome the (unfortunately) wide and consistent public record of Trump’s claim of election fraud.
Count 4 comes from a post–Civil War statute that was designed to punish the Ku Klux Klan and the like who committed horrible violence against innocent black Americans seeking to exercise their voting rights. But President Trump used neither force nor violence to intimidate or prevent people from voting. He did nothing that affected or prevented anyone’s vote because voting already concluded on November 3. Anderson v. United States (1974) nonetheless found that ballot-box stuffing could amount to a violation of the law because it deprived all voters of the right to cast a meaningful ballot. But Smith does not allege that Trump or his allies created fictitious ballots to dilute the vote. Instead, Trump used lawyers to make arguments to persuade the state legislatures or the vice president to use their constitutional powers to replace the popular vote, which the Constitution does in the Electoral College system itself. Trump’s defense will claim not only that he has a First Amendment right to claim election fraud — and the Free Speech Clause does not require that a speaker actually believe what he says — but also that Congress and prosecutors cannot use the criminal law to police the rough and tumble of politics.
It is a black-letter law that criminal statutes must be sufficiently clear that ordinary people can grasp exactly what conduct is forbidden and “in a manner that does not encourage arbitrary and discriminatory enforcement.” The Supreme Court has repeatedly said so since 1926. If prosecutors can make it up as they go along by unilaterally expanding the scope of criminal laws, then people cannot know what the law prohibits. Only Congress has the power to expand or change the criminal laws, not the executive branch, which must administer or enforce the law as written by Congress and as interpreted by the courts.
We will get no definitive answer to these questions and doubts for years. Stretching the law on fraud, obstruction of Congress, and deprivation of civil rights to include these facts will have to go ultimately to the Supreme Court. But the last time this special counsel appeared before the Supreme Court, for concocting an “honest services” theory of fraud to prosecute the governor of Virginia, he lost unanimously. At such a perilous time, we should want the most conservative and careful of prosecutors, and not someone intent on creating new, untested theories based on incomplete facts.
Just as no president has ever tried to reverse his defeat at the ballot box before, no prosecutor has ever brought charges for doing so. There is no precedent for applying the statutes on the books to the unprecedented attack on the Capitol and the effort to block the Electoral College count. Smith may yet file a superseding indictment that will add new facts, defendants, and charges. Until then, his indictment brings to mind Justice Robert Jackson’s warning that prosecutors should beware of “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.” His words are as wise now as they were then.
John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution. He served in the U.S. Department of Justice from 2001 to 2003. John Shu is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.