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It is the biggest what-if of the latest indictment of Donald Trump: What if Republican leaders in Congress had supported impeaching Trump and barring him from holding future office as punishment for his role in the Jan. 6 attack?
In the days after the attack, those leaders seemed ready to do so. Senator Mitch McConnell and Representative Kevin McCarthy told colleagues that they were repulsed by Trump’s actions. Trump had egged on a Jan. 6 rally with false claims of election fraud and told the crowd to “fight like hell.” Later that day, he praised the rioters.
Soon, though, Republican leaders changed their minds. They feared that banning Trump from future office would anger their own voters. The leaders knew that Trump would be leaving the White House by Jan. 20 regardless and chose to focus on resisting the agenda of his Democratic successor, Joe Biden.
There was little question that members of Congress had the authority to ban Trump permanently from federal office. But once they chose not to do so, the legal consequences for Trump’s actions became much murkier.
This is the challenge that Jack Smith, the special counsel overseeing the federal investigations of Trump, has taken on this week.
Strong or weak?
Shocking as it was, Trump’s behavior on Jan. 6 did not violate any laws in obvious ways.
He never directly told those at the Jan. 6 rally to attack Congress. During his speech that day, he even said he knew the protesters would behave “peacefully and patriotically.” It was part of a longstanding Trump pattern, in which — as my colleague Maggie Haberman puts it — “he is often both all over the place and yet somewhat careful not to cross certain lines.”
As for Trump’s broader effort to overturn the election result, no federal law specifically bars politicians from attempting to do so.
Without such a law, Smith has relied on a novel approach. He has charged Trump with committing criminal fraud and violating conspiracy laws that were not written to prevent the overturning of an election result.
A key part of these laws is that they revolve around a person’s intent. Intent is core to the notion of fraud: Only if somebody is knowingly trying to deceive others can he be committing a fraud. If he is spouting falsehoods that he genuinely believes, he isn’t participating in an illegal conspiracy.
That’s why this case seems likely to revolve around Trump’s state of mind. The first page of the indictment, referring to his claims of election fraud, states, “These claims were false, and the Defendant knew that they were false.” By contrast, Trump’s defense lawyers are likely to argue that he truly believed he had won. By airing his honest views, the lawyers will explain, he was exercising his right to free speech, The Times’s Michael Schmidt and Maggie Haberman write.
Legal experts are divided over the strength of the evidence on intent that Smith has presented. Some experts consider it strong, noting that the indictment cites repeated examples of White House aides and state officials telling Trump that he lost. Other legal analysts are more dubious because there is no testimony or recording in which Trump himself acknowledges the reality of his election loss. (Of course, Smith may have additional evidence that he did not include in the indictment.)
For now, you can think of the new charges as being both more important and less solid than Trump’s previous federal indictment, which involved his refusal to return classified documents. In the latest case, he was subverting the very foundation of democracy — the peaceful transfer of power after an election. Yet it remains unclear whether he broke any specific law when he tried to do so.
The most straightforward punishment — impeachment, conviction and a ban on future office — was one that only Congress could have imposed. And congressional Republicans prevented that from happening. “Smith has brought a difficult case. But it’s a necessary case,” David French, a Times Opinion columnist, argues. “This is the trial America needs.”
In the rest of today’s newsletter, you’ll find excerpts from helpful legal commentary, collected by my colleague Ian Prasad Philbrick, as well as summaries of the latest Times coverage.
Legal analysis
Noah Feldman, in Bloomberg Opinion: “Trump was not deluded. He was aware of his defeat. His goal was to delude the rest of us.”
Kim Wehle of The Bulwark: “Beginning on page 6 of the 45-page indictment, Smith’s team knocks the state-of-mind factor out of the park, underscoring the ludicrousness of the suggestion that Trump was oblivious to what he was doing.”
Sarah Isgur and Michael Warren, The Dispatch: “This is a much less clear-cut case than the one down in Florida about the documents and obstruction. These charges are broad and vague at times.”
Editors of National Review: “Mendacious rhetoric in seeking to retain political office is damnable — and, again, impeachable — but it’s not criminal fraud, although that is what Smith has charged.”
Harry Litman, in The Los Angeles Times: “Smith could have gone for broke by charging Trump with seditious conspiracy. He chose not to — wisely in my view. The crimes he has charged will be simpler to prove.”
Politics
Climate
Other Big Stories
Opinions
Prison music gives inmates hope and the rest of us a way to see them as people, Maurice Chammah argues.
Here are columns by Katherine Miller on Mike Pence and Jamelle Bouie on Supreme Court ethics.
MORNING READS
Switched at birth: They were given to families of different ethnicities. At 67, they’re discovering their roots.
Lives Lived: Lois Libien broke ground in the 1960s as a female journalist, but attracted her widest readership with household tips in books and a nationally syndicated newspaper column called “How.” She died at 87.
WOMEN’S WORLD CUP
Brazil drew with Jamaica, ending the World Cup career of Marta, the team’s superstar.
Marta elevated the players around her and asked audiences to appreciate the quality of women’s soccer, Steph Yang writes.
OTHER SPORTS NEWS
More expansion: The Big Ten is discussing adding even more teams, including Oregon and Washington.
M.L.S. dominance: Lionel Messi scored two goals in Inter Miami’s win last night. That makes five in just three games.
What gets thrown at concerts: An audience member struck Bebe Rexha in the head with a cellphone, giving her a black eye, because he thought it “would be funny.” A woman in Las Vegas splashed Cardi B with a drink. At a Pink concert in London, the ashes of an audience member’s mother came flying onto the stage. “This recent cluster of incidents feels like a game of stuntlike one-upmanship, designed to go viral,” Jon Caramanica writes.
More on culture
THE MORNING RECOMMENDS …
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