Prominent Republicans, whether they’re Trump supporters, apologists, or announced candidates for the Republican nomination are speaking out against Tuesday’s indictment of former President Trump. In doing so, they’re deliberately missing the point, trying to couch it as a First Amendment issue, or saying things like, “If Trump is guilty of incitement for the Jan 6 riot, then Schumer and Sanders should be held accountable for incidents, too.” See, for example, Scott Walker’s comments. Or Marco Rubio’s tweet:

“Apparently it is now a crime to make statements challenging election results if a prosecutor decides those statements aren’t true.

“So when should we expect indictments of the democrat politicians who falsely claimed Russia hacked the 2016 election?”

I have two points to make.

First, not one of the four charges in the indictment has anything to do with incitement to riot or violence of any kind. The argument made by Scott Walker and others of his ilk is a red herring. Whether Trump, Schumer, or Sanders is guilty of incitement or similar is a separate issue that should not be conflated with the subject of this indictment.

Second, this is not a First Amendment issue. Item 3 in the introduction to the indictment (the second page) says:

“The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.”

If you read the indictment (and if you’re forming an opinion on it without first reading it, how can you have any confidence that your opinion is at all realistic?), you’ll see that the charges are for conspiracy, obstructing and impeding an official proceeding, and interfering with citizens’ right to vote and to have their votes counted. Specifically:

Count 1: From on or about November 14, 2020, through on or about January 20, 2021, in the District of Columbia and elsewhere, the Defendant, DONALD J. TRUMP, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government.

Count 2: From on or about November 14, 2020, through on or about January 7, 2021, in the District of Columbia and elsewhere, the Defendant, DONALD J. TRUMP, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote, in violation of Title 18, United States Code, Section 1512(c)(2)

Count 3: From on or about November 14, 2020, through on or about January 7, 2021, in the District of Columbia and elsewhere, the Defendant, DONALD J. TRUMP, attempted to, and did, corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote.

Count 4: From on or about November 14, 2020, through on or about January 20, 2021, in the District of Columbia and elsewhere, the Defendant, DONALD J . TRUMP, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States—that is, the right to vote, and to have one’s vote counted.

The indictment clearly lays out evidence of those conspiracies, detailing how the defendant was instrumental in organizing and putting in place an illegal scheme to create fraudulent electors in an attempt to change the election result in his favor. An election that he knew, as shown by his own words, that he had lost. This indictment is not about the President lying. No, this indictment is about the President’s participation in a conspiracy to overthrow the U.S. government using lies, false accusations, and intimidation to enlist others and justify his illegal actions.

The key point here is that the President of the United States attempted to seize power for himself after losing an election that he knew full well was free and fair. Anybody who calls himself a patriot, who believes in the rule of law and the principles on which this country was founded, should be demanding that he stand trial and, if convicted, be imprisoned. Donald Trump, in his attempt to retain power after losing the election, acted like any other thug ruler in history. He does not deserve your, or anybody’s, support.

I spent a large part of the day reading the latest indictment of Donald Trump, this one for his role in the fake electors scheme following the 2020 election, and then letting it marinate in my brain for a while. These are initial thoughts, subject to revision after another reading and more cogitation.

Donald Trump, while President of the United States, used his band of paid intimidators (Elite Strike Force Legal Team) in an attempt to convince or coerce ordinary citizens, state officials, state legislators, federal government officials, and even the Vice President of the United States to fraudulently overturn the results of an election. An election result that, by his own admission, he knew was legitimate. In almost every case, those whom he attempted to enlist in his fraudulent scheme refused, often incurring the President’s wrath. The President fired some and publicly called out others, resulting in many of them receiving death threats and other abuse from Trump’s supporters.

I find it quite interesting that the indictment focuses almost exclusively on Trump’s words: opinions he expressed. You can expect sympathetic individuals to latch onto that and make a big deal of it, especially in light of Monday’s court ruling that, read broadly, essentially says that the President’s words, even if they’re knowingly false statements intended to deceive, are protected by Presidential immunity. But the ruling does not assert blanket immunity. Judge Erdos, who issued the ruling, said:

Other legal proceedings may examine the propriety of his statements and actions while he was the President and whether, as the plaintiffs in this and other cases contend, it was this conduct which served as the actual threat to our democracy. But this case is not the proper place to do so. Here, Trump is entitled to Presidential immunity.

In my opinion, Jack Smith would not have issued the indictment on Tuesday if all he had was Donald Trump’s words. The almost complete absence in the indictment of evidence showing or even hinting at Trump explicitly directing his subordinates or hired thugs to break the law is a red herring. I suspect Jack Smith is holding that back for now and will dribble it out as necessary. I think if he didn’t have clear evidence of Donald Trump breaking the law or directing others to break the law, he would not have released this indictment.

In my mind, there are two separate issues here. The key issue, of course, and the only one relevant to the legal proceedings is whether Donald Trump broke the law. That’s something we won’t know until trial. The second issue, and the one that’s more important in my mind, is whether Donald Trump’s statements and behavior described in the indictment are true. A trial could very well reveal that, as the indictment alleges, Trump knowingly lied in order to retain his office. And yet the jury could find him not guilty of committing a crime.

Imagine that were to happen. Would people still support him? Despite knowing that Donald Trump is, as I have maintained, a liar, cheat, grifter, con man, etc. who consistently made false statements about non-existent election irregularities, made knowingly false accusations of misconduct against innocent Americans, tried to convince his subordinates and personal staff to fraudulently overturn an election result, ultimately culminating in a riot on January 6, 2021 by those who believed his lies. All while standing behind his alleged “immunity,” knowing that if his scheme failed, somebody else would take the fall for it.

I think every American, even those who would support Trump, should read that indictment and subject their beliefs to some serious consideration. I find it inconceivable that the breadth of evidence revealed in that indictment could be fabricated, that every witness who testified could be convinced to lie under oath. I hope that any honest thinking person, regardless of how dedicated they are to the fraud that is Donald J. Trump, would come away with some serious questions about the former president. Regardless of your political beliefs, is that really the kind of person you want at the head of our government?