As former U.S. president Donald Trump would have it, he was merely exercising his free-speech rights when he phoned Georgia’s then-secretary of state, Brad Raffensperger, in early 2021 and asked him to manufacture more than 11,000 votes so he could claim victory in a presidential race he had just lost.
“So what are we going to do here folks?” Trump asked during the one-hour call. “I only need 11,000 votes. Fellas, I need 11,000 votes.” Trump still oversaw the Justice Department at the time and threatened Raffensperger with criminal charges if he failed to support the attempted coup.
“What we’re seeing is not at all what you’re describing,” one of Raffensperger’s lawyers informed Trump. Trump persisted. Four days later, on Jan. 6, 2021, he delivered a speech that kicked off a violent siege of the U.S. Capitol meant to disrupt the certification of the 2020 presidential election.
On Monday night, Trump, along with 18 alleged co-conspirators, was indicted in Georgia for an array of crimes related to efforts to sabotage the vote there in the wake of his 2020 election loss.
Trump took to his own social media site, Truth Social, to respond to the indictment. “The Witch Hunt continues!” he noted early Tuesday morning. His campaign posted a statement earlier on Truth Social claiming that the Georgia indictment, like its recent federal precursors, amounted to an attack on the U.S. Constitution. “They are taking away President Trump’s First Amendment right to free speech, and the right to challenge a rigged and stolen election,” the statement allowed.
This argument, and this diversion, are, of course, nothing more than noise. Trump isn’t being indicted for what he said. He’s being indicted for what he did.
Sure, like any 77-year-old wandering alone and howling at the sky and storms like King Lear, Trump can say whatever he wants. But that doesn’t entitle him to do whatever he wants. His right to howl doesn’t empower him, under U.S. laws, to then try to commit crimes - or actively steal an election. This is a settled legal matter, as Trump’s own consiglieres have repeatedly acknowledged.
“All conspiracies involve speech, and all fraud involves speech,” Trump’s former attorney general, Bill Barr, observed in a recent CNN interview. “So, free speech doesn’t give you the right to engage in a fraudulent conspiracy.”
One of the many virtues of Fulton County District Attorney Fani Willis’s indictment of Trump and his collaborators is that it relies on a discernible evidentiary trail - including Trump’s phone call to Raffensperger - that leaves little doubt that a fraudulent conspiracy took place. In that regard, the Georgia case has the same strengths as special counsel Jack Smith’s two recent federal indictments of Trump. The evidence is so strong in all three that Trump and his lawyers will face an uphill battle in a courtroom.
To the tune of 41 criminal counts, the Georgia charges allege that Trump and his co-conspirators made false statements to a broad swath of public officials, forged documents, engaged in computer theft, committed perjury, impersonated a public officer, meddled with witnesses and tried to convince an array of authorities to violate their oaths of office - all in the service of torpedoing an election whose outcome wasn’t in doubt.
“Trump and the other Defendants charged in this Indictment refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump,” the indictment says.
Trump’s collaborators - including former New York mayor Rudy Giuliani; former White House chief of staff Mark Meadows; former Trump lawyers Kenneth Chesebro, John Eastman, Sidney Powell, Jenna Ellis and Ray Smith; and a former Justice Department official, Jeffrey Clark - were all part of “a criminal organization whose members and associates engaged in various related criminal activities,” the indictment states.
If Trump’s phone call to Raffensperger two years ago memorialized what corruption and a desire to orchestrate a political coup sounded like, the Georgia indictment memorializes how a gang of alleged criminals went about trying to effect that coup (even if the gang couldn’t shoot straight).
Much has been made of polls gauging how voters have responded to the recent flurry of Trump indictments, and of how engaged viewers are with TV programs that explicate Trump’s serial lawlessness. The Georgia indictment will be subjected to the same litmus tests, caught up, again, in attempts to measure where Trump stands in the court of public opinion.
But for prosecutors such as Willis and Smith, the court of law, not of public opinion, is where their responsibilities reside. Both of them have had to press forward with criminal cases in which the crimes are glaringly obvious.
Should their cases come to trial sooner rather than later, the spectacle of multiple courtroom dramas and reams of evidence of wrongdoing could sway voters and the public in ways that polls and ratings don’t currently capture. The congressional hearings into the Jan. 6 insurrection, once televised, offered proof of how a powerful public narrative can change minds.
Meanwhile, Willis is going about her work. Trump has until noon on Aug. 25 to surrender to Georgia authorities and submit to an arrest and booking. It’s the latest reminder, as lawyers, judges and at least one Supreme Court justice have routinely pointed out, that no one in the U.S. - including a former president - is above the law.
Timothy L. O’Brien is senior executive editor of Bloomberg Opinion. A former editor and reporter for the New York Times, he is author of “TrumpNation: The Art of Being the Donald.”
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