“You’re too honest!” then-US president Donald Trump thundered at his vice president on January 1, 2021. Mike Pence had just flatly rebuffed demands that he abuse his ceremonial role in Congress on January 6 to unlawfully reject certified votes and, as he recently explained, “essentially overturn the election” of Joe Biden.
That stunning quote leaps out of the August 1 indictment by special prosecutor Jack Smith charging Mr Trump with a failed conspiracy against the US constitutional system.
Mr Trump and six unnamed (though easily identified) and as-yet unindicted co-conspirators stand accused of a complex multi-stage plot to keep him in power despite his election defeat. The indictment outlines four charges: two related to a broad conspiracy to defraud the US through numerous schemes to undo the election; attempting to disrupt the official proceeding in Congress on January 6 to confirm the results; and conspiring to defraud citizens of their voting rights by overturning that outcome.
The indictment suggests a mountain of additional and underlying evidence. It is summarised in a key sentence: “The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.”
When he was arraigned in court in Washington on Thursday, Mr Trump appeared more subdued than ever. He is reportedly angered and alarmed in private, although aggressively defiant and energetically fundraising from the new charges in public. He already faces criminal trials for fraudulent business records in Manhattan and stealing government documents in Florida.
The Trump camp is outraged that these once-unthinkable charges of a presidential effort to destroy the US constitutional order for personal political benefits have been brought in Washington, a notably liberal, overwhelmingly Democratic, 44 per cent African-American, and distinctly Trump-unfriendly city.
Mr Smith was plainly thinking ahead. He filed the documents case in the Trump-friendly federal district of southern Florida, because, he explained to upset liberals, the alleged offences had occurred there. Neither side objected, despite the obvious advantage that gave to Mr Trump. The same logic now leads squarely to the new, and far more consequential, charges being filed in Washington where, again, the alleged offences took place.
Mr Trump’s attorneys will undoubtedly demand a change of venue, but Mr Smith may have outmanoeuvred them already, using the Florida documents case to secure a Washington venue for the coup plot trial.
There’s an additional symmetry. Federal judges are randomly assigned from pools in given districts. In the documents case, Mr Trump again drew one of his own nominees, the inexperienced but highly conservative Aileen Cannon. Many liberals feared that she would again issue bewildering rulings in his favour, though she hasn’t repeated her earlier biases yet.
Now Trump supporters are fuming that Tanya Chutkan – a highly experienced liberal judge and black female Jamaican immigrant (some might call that Mr Trump’s worst nightmare) – will preside over his Washington trial. A Barack Obama nominee, she has already handed down stiff sentences against January 6 insurrectionists.
It makes little sense to approve of Judge Cannon and a Florida venue in one case and object to Judge Chutkan and a Washington venue in another, when precisely the same logic and processes produced both results.
The Washington trial raises two key questions: its timing now and Mr Trump’s state of mind then.
By shrewdly charging Mr Trump alone, Mr Smith has acted on the national imperative of holding the trial before the 2024 presidential election, with Mr Trump overwhelmingly favoured to be the Republican nominee. Voters have every right to observe this unprecedented trial of a former president who allegedly sought to overturn the constitutional system to remain in power, and learn the outcome, before deciding Mr Trump’s political fate.
Conversely, Mr Trump will certainly seek to delay proceedings as much as possible. With additional defendants, there would be little chance it could proceed rapidly. But with just one man on trial, if Judge Chutkan and Mr Smith both believe the public interest demands an outcome before the election, that could and should happen.
As with most non-violent white-collar cases, conviction might, but shouldn’t, hinge on Mr Trump’s state of mind at the time. His lawyers have signalled that their defence will centre on assertions he sincerely believed the election was stolen from him and was acting in good faith.
This defence is much weaker than many experts surmise.
There is ample evidence that Mr Trump privately understood that he lost. But even if he ultimately somehow managed to convince himself that he won, US law does not allow wilful ignorance to eliminate criminal intent.
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On January 6, 2021, Trump supporters clash with police and security forces as they storm the US Capitol in Washington. AFP -
Ivanka Trump and Jared Kushner have already spoken to January 6 investigators. Whether they will appear in primetime is yet to be determined. Reuters -
Rudy Giuliani, lawyer for former president Donald Trump, gives a press conference in the car park of the Four Seasons landscaping company in Philadelphia, Pennsylvania, after Joe Biden was declared as winner of the 2020 presidential election, which he claimed was false. As a result of these claims, Mr Giuliani can no longer practice law in the state of New York. EPA -
Donald Trump meets Clint Hickman, vice chairman of Arizona's 4th District, Maricopa County Board of Supervisors, at Phoenix Sky Harbour International Airport in Phoenix, Arizona, Mr Hickman said that he refused to take calls from the White House and Mr Trump, who he said was trying to overturn the battleground state's results. AP -
Four days before the Capitol riot, Donald Trump placed a call to Georgia Secretary of State Brad Raffensperger and asked the official to 'find' 11,780 votes to prevent the certification of Joe Biden's victory in the battleground state. The House committee investigators have already interviewed election officials in the state. AP -
Ruby Freeman was an employee of the Fulton County Board of Registration and Elections in Atlanta, Georgia, during the 2020 presidential election. After the state went to Joe Biden, Donald Trump accused Ms Freeman of stealing ballots in a call with Brad Raffensperger, who told Mr Trump that he was being misled by claims on social media. Reuters -
Kimberly Guilfoyle, engaged to Donald Trump's son, boasted to a Republican operative that she had raised $3 million for the rally that helped fuel the January 6 Capitol riot. She may be called to testify. AFP -
Kash Patel, chief of staff to former acting secretary of defence Christopher Miller, gave a deposition on Capitol Hill to the committee on December 9, 2021. Members of the committee and staff members had been meeting with Mr Patel and 'Stop the Steal' organiser Ali Alexander. Getty Images / AFP -
The Willard Hotel in Washington played home to a 'war room' set up by advisers of Donald Trump and has become the focus of the congressional investigation into the January 6 attack. AFP -
Former White House chief strategist in the Trump administration Steven Bannon leaves a federal courthouse in Washington after being indicted on two counts of contempt of Congress. EPA -
Roger Stone, a former adviser and confidant of Donald Trump, gave a deposition before the committee in which he repeatedly pled the Fifth Amendment when questioned. Getty Images / AFP -
Bennie Thompson was chosen by Speaker of the House Nancy Pelosi to lead the House Select Committee on the January 6 Attack on the US Capitol. Getty Images / AFP -
Bennie Thompson meets Liz Cheney, vice-chair of the select committee, Adam Kinzinger and Jamie Raskin on Capitol Hill. The committee voted unanimously to recommend contempt of Congress charges for former Department of Justice official Jeffrey Clark for defying his subpoena, refusing to answer questions and failing to hand over documents to the committee. Getty Images / AFP -
Liz Cheney, committee chairman Bennie Thompson and other members of the committee speak to reporters after meeting with Nancy Pelosi. Reuters -
Republican Scott Perry of Pennsylvania helped promote theories that the 2020 presidential election was stolen, resulting in millions of tax dollars spent on recounts in the state. Election workers there were also threatened with violence. Reuters -
Lawyer John Eastman spoke with Donald Trump's personal legal representative Rudy Giuliani at the January 6 'Stop the Steal' rally in Washington. During the melee, Mr Eastman emailed Greg Jacobs, aid to vice president at the time Mike Pence, to say that it was Mr Pence's fault that the riot was taking place because he refused to block the election's certification results. Reuters -
Before Mike Pence could certify the Electoral College votes before Congress, the last step in the process before Joe Biden was to be sworn in, rioters breached the US Capitol. Outside the chamber doors, a person was shot and police officers were beaten and trampled as some rioters yelled: 'Hang Mike Pence!' EPA -
Former White House chief of staff Mark Meadows said he has no intention of complying with a subpoena to appear before the committee and missed a scheduled deposition. Committee members voted unanimously to pursue criminal contempt charges against Mr Meadows for refusing to give evidence. AFP -
In a legal setback, a federal appeals court ruled against Donald Trump, demanding he turn over White House records to the committee. AP -
Fox News host Sean Hannity sent text messages to the White House during the January 6 insurrection. AP -
The Oath Keepers is a US militia group that recruits former members of the military and law enforcement, with many participating in the January 6 attack. The committee has sent a subpoena to its founder, Stewart Rhoades, and several members have been arrested. AP -
The select committee subpoenaed Enrique Tarrio, naming him as leader of the Proud Boys, an extremist group that responded to Donald Trump’s call to descend on Washington and which played a central role in the attack on the Capitol. EPA -
US Olympic swimmer Klete Keller can be seen, with arms extended and wearing a blue kerchief covering his face, during the attack on the US Capitol. He pled guilty to one count of obstructing an official proceeding and is co-operating with the committee. AFP -
House select committee member Liz Cheney told CNN that a witness said Donald Trump's daughter and former White House adviser, Ivanka Trump, pleaded with her father to put a stop to the violence that took place on January 6. Getty Images / AFP -
On January 9, 2021, Twitter banned Donald Trump after he tweeted his support for the rioters. Reuters -
'Stop the Steal' organiser Ali Alexander gave a deposition on Capitol Hill to the committee. Getty Images / AFP -
Stephanie Grisham, former White House Press Secretary under former US president Donald Trump, leaves the O'Neill House office building following a meeting with the Select Committee to Investigate the January 6th attack on the US Capitol. Reuters -
John Eastman, a lawyer for former president Donald Trump, possibly broke legal and ethical rules relating to the 2020 election. AP -
Jim Jordan, a Republican congressman, admitted to speaking with Donald Trump on January 6 but refuses to speak with the committee. Reuters
His former attorney general, William Barr, has described how Mr Trump dismissed verified facts from his own officials, and sought any argument, no matter how outlandish, that the election was stolen. He privately described allegations by “co-conspirator 3”, attorney Sidney Powell, as sounding “crazy”, but promoted her crackpot theories in public.
US law provides a potent rebuttal to such a defence. If a defendant wilfully avoided learning of a fact, or deliberately convinced himself of an obvious falsehood despite known facts, criminal intent can be inferred.
His supporters filed more than 60 lawsuits challenging the election. All failed miserably. As “co-conspirator 1”, attorney Rudolph Giuliani, told an Arizona official: “We’ve got lots of theories. We just don’t have the evidence.” They didn’t and never will.
Mr Trump will also argue he was merely following the advice of lawyers (many of the unnamed co-conspirators). In fact, he rejected the advice of almost all legal officials within his administration and campaign attorneys to accept defeat, instead embracing the few who told him what he wanted to hear.
Mr Trump realised he lost. Even if he eventually convinced himself he won, intentional ignorance of objectively verified and known facts isn’t a viable defence. No belief justifies conspiracies to defraud the US, deprive citizens of voting rights, or obstruct an official proceeding. If prosecutors can show he did those things, even a good faith belief that the election was stolen can’t excuse them.
The whole saga is perfectly encapsulated in Mr Trump’s telling outburst at Mr Pence: “You’re too honest!” Too honest for what? Unfortunately for Mr Trump, this inescapable question answers itself.
