Once again, Washington Post Associate Editor Ruth Marcus performs a service in a column that appeared over the weekend.
She lays out the specific charges against Donald Trump, then gives her opinion about how each will fare in court.
She started her column this way:
“Now the legal wrangling begins. The indictment of Donald Trump lays out four felony counts: Conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction and attempt to obstruct an official proceeding; and conspiracy against voting rights.”
Without surprise in her voice, she says that “Trump’s lawyers will surely move to challenge the legal sufficiency of the case, arguing that the allegations, even if true, don’t amount to a crime and filing a motion to dismiss the indictment even before the case goes to trial.”
She adds, “I think they’ll lose, even if some charges are knocked out or pared back, prosecutors will be able to proceed on others.”
Below is what Marcus reported — the rationale against the charges based on comments from Trump attorneys, though some of them may have to recuse themselves because they also could become witnesses:
Argument #1: The statutes governing conspiracy to obstruct an official proceeding and obstruction of an official proceeding (Counts Two and Three) don’t apply here, because that prohibition only covers destruction of evidence and other forms of evidence tampering.
The relevant law [18 U.S.C. 1512(c)], Marcus writes, provides that whoever “corruptly (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
Argument #2: Trump lacked the requisite intent to break the law or to act corruptly, because he believed that he won the election and was only taking steps to vindicate his rights as the supposedly victorious candidate.
The intent question is a complicated one, Marcius writes. “The indictment repeatedly asserts that Trump knew he lost the election and sets out a mountain of evidence to that effect — his own statements, the conclusions of his top advisers, the unanimous findings of numerous courts.
“At the same time, it recognizes that Trump had every right — whether he was lying or merely deluded — to argue that he had won. He just didn’t have the right to use illegal means to effectuate that victory.”
Argument #3: Trump relied on advice of counsel in pursuing his quest to remain in office.
Marcus writes that former attorney general, William P. Barr, has said “I don’t think that dog is going to hunt” – and she agrees with Barr.
“Reliance on advice of counsel is an affirmative defense available to Trump, but the lawyer actually has to be acting as the counsel (there’s no evidence that, for example, Trump retained John Eastman for this purpose) and, even more important, that reliance has to be reasonable. “
Argument #4: The federal civil rights statute under which Trump is accused of conspiring to interfere with the right to vote does not cover the conduct at issue here.
The Reconstruction-era law [18 U.S.C. 241], originally used against groups such as the Ku Klux Klan, prohibits conspiracies “to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”
The indictment alleges that Trump and co-conspirators sought to interfere with “the right to vote, and to have one’s vote counted.”
So, what all this indicates is that we’re in for a long fight over what the law means and how Trump will be affected by it.
Now, I know there is a precept in law that you are “innocent until proven guilty.” Thus, I guess, Trump deserves that protection.
But, in the court of public opinion, different than a court of law, Trump has proven himself unworthy of support.
If it weren’t so serious, it is almost comical to see Trump want to run the government he sets out to destroy at every turn.
Marcus concludes:
“If Trump knows anything, it’s how to manipulate the legal system to his advantage, which in this case means throwing up a lot of arguments to see what will stick, in the hope, above all, of delaying a trial.
“After all, Trump’s winningest legal strategy would be to return to office and order the prosecution dismissed.”
Perish that thought.