Trump’s Jan. 6 Indictment: A Political Scheme to Influence the Next Election

The latest indictment of Donald Trump is politics masquerading as law masquerading as politics.

To peel this onion quickly, there is no legal case against Donald Trump. There was a convincing impeachment case in January 2021, but the political class failed to proffer it. Democrats, instead, exploited the opportunity to trumpet partisan “incitement to insurrection” messaging that targeted Trump supporters as domestic terrorists; for their part, Republicans abdicated, out of fear of Trump’s rabid political base, on the dubious ground that it was improper to impeach a president at or after the end of his term.

The compelling impeachment case against Trump involved not the Capitol riot — as to which he was morally culpable but had done nothing criminally actionable — but his reckless “stop the steal” campaign. In that connection, he had violated his public trust, his oath to preserve the Constitution and execute the laws faithfully: He used the powers of the nation’s highest office to undermine state sovereignty over the electoral process and to pressure Congress and the vice president to violate their constitutional duty to ratify Joe Biden’s victory by counting state-certified electoral votes. 

It is true enough, moreover, that Trump could not be criminally prosecuted for incitement — the federal crime of soliciting a crime of violence — because he had called for the march on the Capitol to be peaceful. Yet, it was still an outrageous breach of separation-of-powers for the chief executive to encourage a raucous protest on the legislative branch’s turf. And while Trump did call for nonviolence, his exhortations were still breathtakingly irresponsible, an outrage he compounded by refusing to urge his supporters to stand down — even after the uprising had gone on for hours, police were being viciously attacked, and the Capitol had to be evacuated.

Those were not criminally prosecutable crimes on Trump’s part. They were what Alexander Hamilton described as “political” wrongs — not in the sense of partisan politics but of dereliction of the duties of high public office. Impeachment was rare in American history until the end of the 20th century, but this was a textbook case.

While the presidency has gotten an inordinate amount of attention since its powers and those of the administrative state swelled with the New Deal and the post-World War II era, the true dysfunction in modern American governance lies with Congress. It failed to deal effectively with the aftermath of the 2020 election, just as it is AWOL on virtually all matters of critical public policy.

Eventually, it dawned on lawmakers that they had botched Trump’s second impeachment — after undermining their credibility with a trifling, shamefully partisan first impeachment. That was the point of the House January 6 committee — the majority Democrats’ attempt to paper over the rushed, incompetent investigation that preceded the January 2021 “incitement of insurrection” impeachment article. But true to form, then-House Speaker Nancy Pelosi (D-Calif.) refused to infuse the committee with bipartisan credibility, and thus its one-sided investigation and highly choreographed proceedings were ignored by half the country.

In our system, it is the obligation of the Article I branch, Congress, to counter abuses of power by the Article II branch, the executive. The Framers would have scoffed at the notion that a president could be checked — effectively and without partisan enmity — by prosecutors who worked for either (a) the president who was suspected of wrongdoing, or (b) a president of the opposition party — particularly one, such as Joe Biden, who is running against Trump, the former president under suspicion.

Yet that is exactly what the Biden administration has served up: a wayward effort by the Justice Department to do Congress’s job.

The new indictment is a partisan artifice. Attorney General Merrick Garland, who will not appoint a special counsel for the Biden corruption investigation as to which the Biden Justice Department has a neon-flashing conflict of interest, appointed a special counsel for Trump despite the lack of any conflict. The move was strictly political. Garland and President Biden were committed to using to the executive’s criminal enforcement powers against Biden’s principal opponent in the 2024 campaign, so they brought in Jack Smith to do the dirty work — enabling them to pretend they have nothing to do with it, even though Smith answers to Garland and exercises power that belongs solely to Biden.

The more basic problem, however, is that, although Congress may impeach over maladministration that does not necessarily violate any penal law, federal prosecutors can take action only if there are crimes that can be proved beyond a reasonable doubt against a defendant armed with all of the Constitution’s due process protections.

Smith does not have such crimes. He has an abundance of deceptive speech and expression by Trump that is constitutionally protected — in fact, it is political speech in connection with the electoral process, at the very core of First Amendment protection. He doesn’t have penal offenses.

So he fakes it. Trump is charged with defrauding the United States, even though it was just a few weeks ago — in throwing out convictions of two cronies of former New York governor Andrew Cuomo — that the Supreme Court reaffirmed that, in federal law, “fraud” means a swindle to bilk victims out of money or tangible property. It is not a vehicle by which prosecutors may impose their vision of good government. 

Trump is charged with corruptly obstructing Congress, even though “corruption” for these purposes must comprise clearly unlawful acts such as evidence manipulation or witness intimidation, not speech that is constitutionally protected even if deceptive. He is, finally and absurdly, charged with a civil rights violation — a scheme to have votes discounted — based on a Civil War-era statute designed to address the Ku Klux Klan’s forcible attacks on and intimidation of Black voters.

For good measure, Smith tosses in a few paragraphs about the Capitol riot — obviously, so he can try to persuade the court to allow him to fire up a D.C. jury with images of it even though he lacks sufficient evidence to charge it as a crime.

That’s the whole point, of course: The political objective of this political scheme, which the Biden Justice Department has masqueraded as a legal proceeding, is to rush the case to trial and inundate voters with Capitol riot imagery in the 2024 campaign stretch-run. Ironically, it’s a corrupt scheme to influence the presidential election — exactly what Trump is accused of doing.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at National Review Institute, contributing editor at National Review, and a Fox News contributor.