It may surprise people to know that trying to overturn an American election is not a crime. The means chosen to do it must also be criminal.
Lying about voting machines and spreading misinformation about who won is not enough.
That is why the four members of the Oath Keepers were convicted of seditious conspiracy—conspiring to oppose “by force” the lawful transfer of power on Jan. 6, 2021.
That is why people who committed trespass by entering the Capitol that day, or assaulted police officers, have been charged and convicted, while the thousands who surrounded the building to urge Vice-President Mike Pence to reject the lawful Biden electors did not commit a crime.
That is why the 147 Republican members of Congress who voted to reject the lawful electors from Arizona and Pennsylvania, and thus overturn the election result, committed no crime.
That is also why the seven Democratic members of Congress who similarly voted to reject lawful electors in the 2016 Presidential election committed no crime.
And if Pence had, as urged, refused to count Biden electors from several states, thus literally subverting the election result, he would have committed no crime.
Lawyers can face discipline, even disbarment, for dishonesty, in court and out of court. But even so, these lawyers are not guilty of criminal conduct.
Given this, the criminal prosecutions that many Democrats have been waiting and hoping for are going to prove much more difficult than is generally assumed. The ongoing prosecution of former President Donald Trump for retaining classified materials is a slam-dunk compared to the difficulty future cases about the 2020 election are going to have.
Consider the forgery and other charges recently filed by the Michigan Attorney General against the 16 self-proclaimed Michigan Presidential electors.
These false electors signed their names to documents claiming they were duly elected in their state.
Clearly these were false statements even if the defendants sincerely believed that voter fraud in Michigan had deprived Trump of a victory that he had actually won.
But the serious felonies that the Michigan defendants face require more than filing false statements. Forgery and related crimes require an intent to defraud.
In a normal forgery case, a person signs someone else’s name on a document in the hope that a third party will credit the signature and pay money or deliver some other asset to the forger. That is fraud.
What is the corresponding fraud in the case of the Michigan false electors?
The defendants signed their own names knowing that the Michigan authorities and the officials at the Senate were aware that Trump lost Michigan. They could not have expected to be credited as electors unless the 2020 election results were somehow thrown out.
And even if Trump somehow had been proclaimed the winner in Michigan, these nobodies would not be the electors certified. The electors certified would be the official Trump electors.
The defendants not only knew all this, they knew that every person to whom these documents were sent was also aware of these facts.
Their actions were not intended to actually make them electors. They were performing political theater.
It is true that there were suggestions at the time that state legislatures could simply vote to recognize any electors they decided to recognize. But that is still not fraud. The state legislatures either have that power or they do not. (They don’t).
For these reasons, a jury may very well find that there was no intent to defraud and acquit the Michigan defendants on all the serious charges.
The same possibility of acquittal is present if Trump is charged with subverting the Presidential election in Georgia.
Yes, we all have read that Trump asked the Georgia Secretary of State to “find” enough votes for Trump to be declared the winner in Georgia.
And if the jury finds that this meant that Georgia officials should invent votes and falsify election results, Trump would clearly be guilty of solicitation and conspiracy.
But if the jurors conclude, as they well may, that Trump was complaining that votes that had actually been cast for him had somehow gone missing from the final election tally and that election officials should find these legitimate votes, the jurors will vote to acquit Trump.
Remember, guilt must be proved beyond a reasonable doubt.
This leads to what is really the main allegation against Trump and the subject of the federal indictment handed down on Aug.1 —that he fomented the riot on Jan. 6 through his lies about the election results in general and in his specific calls on that day to the crowd to go to the Capitol and “fight like hell.”
But Trump might have just meant that a huge demonstration would intimidate Pence and cause him to reject the Biden electors even though Pence had no legal authority to do that.
Just as Pence would not have been committing a crime if he rejected Biden electors, and just as the demonstrators were not committing a crime by urging Pence to do so, neither would Trump be committing a crime if he told people to go to the Capitol to intimidate Pence by demonstrating.
Attempting to overturn an election by lying about the results and convincing millions of others of these falsehoods, thus undermining democracy and putting American public life at risk—none of that is by itself criminal, as the indictment concedes.
The indictment attempts to circumvent this legal problem by emphasizing that Trump not only knew that all of his factual claims were false, he also knew that Pence could not refuse to accept the Biden electors. That is what the indictment means by obstructing an official proceeding.
And this approach may in fact convince a jury. Trump may be convicted and that conviction may be upheld on appeal.
But this approach may not work.
People who are pushing for further prosecution of Trump should consider this: we already know that with every indictment, Trump’s chances of receiving the Republican nomination for President are enhanced.
An acquittal by a jury in any of these cases might just get Trump re-elected President.
That is not a risk worth taking.
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