Early in the federal indictment of former President Trump that was released yesterday, special counsel Jack Smith admits that Trump, “like every American,” has the right to say whatever he wants about the 2020 presidential election—and even has the right to lie about it. But it was a crime, Smith asserts, for Trump to use lies to obstruct and distort the tallying and certifying of election results. Smith goes on to indict Trump for conspiracy to defraud the United States, conspiracy to obstruct the certification of presidential election results, and conspiracy to deprive Americans of their right to vote.
The distinction between lying that is free of legal consequences and lying in order to commit fraud and obstruction isn’t a terribly subtle one, but there are going to be people who will pretend they don’t understand it. If Trump has the right to lie to NBC News, they will ask, why doesn’t he also have the right to lie to Georgia’s Secretary of State about Georgia’s election results? So let’s get this out of the way: If I announce at my favorite local gay bar that Ryan Gosling and I have just gotten married, and I succeed in making all my friends jealous, I’m not committing a crime. But if Gosling and I file our taxes together, falsely claiming on the forms that we’re married, in an attempt to pay less tax than we would otherwise have to, it’s fraud. And it’s still fraud even if we don’t get away with it.
There are probably also going to be people who claim that Trump and his conspirators may not have been aware that the claims they were making were untrue. Smith’s indictment shivs that defense pretty brutally. In paragraph 30 (¶30) of the indictment, to take just one bald-faced example, John Eastman, aka “Co-Conspirator 2,” acknowledges in an email that he and Trump have learned that some of the allegations in a verification they have signed are “inaccurate” and that signing a new verification “with that knowledge (and incorporation by reference) would not be accurate”—and then he and Trump go ahead and put Trump’s signature on the new verification anyway.
Yesterday’s indictment isn’t as much fun to read as Smith’s earlier indictment of Trump for withholding classified security documents, partly because a more serious matter is at stake (national security secrets are important, but they’re not as important as the right to vote, and Trump seems to have been treating the secret documents as memorabilia, anyway, a motivation so entertainingly venal that it’s hard to treat the earlier matter with the gravity it deserves) and partly because the way Trump and his allies lied—over and over again, shamelessly—is exhausting. The catalog of their lies in Smith’s indictment is practically Homeric. They lie, are told they are lying, and then tell the same lie again. Remember the years we spent trying to argue in good faith with people who were repeating lies in bad faith? These are those people. “It’s all just conspiracy shit beamed down from the mothership,” (¶25) admits a senior advisor to the Trump campaign, in a private email, dismayed by his team’s repeated losses in court and exasperated that the team’s political strategy obliges him or her to pretend publicly to believe in repeatedly debunked claims.
The particular lie that pushed this senior advisor into venting was about election workers at the State Farm Arena in Atlanta. Giuliani (“Co-Conspirator 1”) told the lie to Georgia state senators on December 3, 2020 (¶21), the lie was publicly debunked by the Georgia secretary of state’s chief operating officer on December 4 (¶23), Georgia’s attorney general told Trump there was no evidence for the claim on December 8 (¶24), Giuliani told the lie again in a public hearing before a committee of Georgia’s state representatives on December 10 (¶26), Trump’s acting attorney general and acting deputy attorney general told Trump the actions at State Farm Arena had been “benign” on December 15 (¶27), Trump’s chief of staff told him the election tallying at State Farm Arena had been “exemplary” on December 22 (¶28), Trump nonetheless tweeted that Georgia’s election officials were “terrible people” who were hiding evidence of fraud on December 23 (¶28), Trump repeated the lie to his acting attorney general and acting deputy attorney general on December 27 (¶29), Trump signed a verification incorporating the lie on December 31 (¶30), and Trump repeated the lie one more time on January 2, 2021, to Georgia’s secretary of state, during the infamous conversation when Trump said he was looking to “find” 11,780 more votes (¶31).
After Giuliani told the lie in Georgia’s House of Representatives on December 10, “the two election workers received numerous death threats,” Smith observes (¶26). The identities of the people who made those death threats are very likely unknown, but almost certainly neither Trump nor any of his co-conspirators made the threats.
Why are they nonetheless part of Smith’s indictment? If the case ever reaches trial, Trump’s lawyers may try to argue that he shouldn’t be held responsible for threats made by a third party. But keep in mind the distinction that is the crux of the case, between lying for the sake of vanity or entertainment and lying in order to obstruct or impede the workings of democracy. A death threat is not an innocuous speech act. It is a promise to use violence. A public lie about a government employee or official, if a reasonable person would expect the lie to trigger death threats, is therefore a kind of force, applied on a government employee or official with respect to the performance of their duties. “An act of force to compel our enemy to do our will”: that’s Clausewitz’s first (if less famous) definition of war. With good reason, the laws in any well-ordered republic forbid acts of war between politicians and/or citizens. Hobbes writes, in Leviathan, that “because all signs of hatred, or contempt, provoke to fight, . . . we may . . . , for a law of nature, set down this precept, that no man by deed, word, countenance, or gesture, declare hatred, or contempt of another.” In a state of war, one isn’t necessarily bound by the laws of nature, Hobbes writes, and we don’t want to be living in a state of war.
On November 11, 2020, Trump disparaged a Philadelphia City Commissioner who had said there was no evidence of voter fraud in Philadelphia, and the commissioner and his family were sent death threats (¶42). And on January 6, 2021, famously, Trump tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” and one minute later, the Secret Service felt obliged to evacuate Pence to a secure location. Rioters who broke into the Capitol that afternoon chanted, “Hang Mike Pence!” (¶111–13). If Trump knows anything about himself, and it may be the only thing about himself he knows, it is that he has a gift for summoning and directing the rage of his followers. It is his instinct in a crisis, almost a reflex. Words for him are instrumental, not representative. He knew what he was doing.
The prospect of violence recurs at two other moments in the indictment. On January 3, a deputy White House counsel warned Jeffrey Clark (“Co-Conspirator 4”) that if Trump were kept in power on the basis of false claims of voter fraud, there would be “riots in every major city in the United States.” Clark replied, “Well, . . . that’s why there’s an Insurrection Act.” Clark, in other words, looked forward to repressing with military force any protest of the power grab he and his conspirators were trying to effect.
In its legal specifics, the scheme to keep Trump in power depended on the theory that Pence had the authority to reject or return to the states their slates of legitimate electors. On January 4, John Eastman acknowledged to one of Trump’s senior advisors that no court was likely to back the theory, and the advisor warned Eastman that by drumming up public fury on the strength of a theory that could never be put into effect legally, Trump and his allies were “going to cause riots in the streets.” Eastman replied that it wouldn’t be the first moment in American history when violence was needed to protect the republic (¶94). Eastman, in other words, looked forward to bolstering with street violence a legal theory he conceded was unjustifiable.
Clark looked forward to putting down rioters, and Eastman looked forward to being backed by them, but both knew that through lies they were welcoming violence into politics. Clausewitz’s second, more famous definition of war is “a continuation of political activity by other means”—the implication being that politics has its own means. To maintain the rule of law, politicians who go beyond them must be kept out of politics, if not sent to jail.