Past efforts to hold Trump accountable for the violence and his broader election subversion campaign have fallen short
Unlike Donald Trump’s first two indictments, the former president’s third set of criminal charges stands out as the first major legal effort to hold him accountable for attempting to overturn the results of the 2020 election.
Pro-democracy experts welcomed the indictment, announced on Tuesday by the office of special counsel Jack Smith, as a victory for the rule of law that could help fortify America’s election systems in the face of ongoing threats from Trump and his allies.
The indictment charges Trump with four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights in his relentless pursuit to reverse the outcome of the 2020 election and remain in office.
“This is one of the worst things any American president has ever done,” said Michael Waldman, president and CEO of the Brennan Center for Justice at New York University’s School of Law. “The magnitude of the indictment matches the magnitude of what Trump tried to do, which is to overthrow the constitutional system to stay in office.”
The indictment comes more than two years after a group of Trump’s supporters stormed the US Capitol in an attempt to disrupt the congressional certification of Joe Biden’s victory in the 2020 election. The January 6 attack, which has already resulted in more than 1,000 arrests, caused the deaths of seven people, a bipartisan Senate report found.
Despite the deadly consequences of the Capitol insurrection, past efforts to hold Trump accountable for the violence and his broader election subversion campaign have fallen short. The House voted to impeach Trump for inciting the insurrection, but he was acquitted by the Senate. The House then passed a bill calling for the formation of an independent commission to investigate the Capitol attack, but that proposal also failed in the Senate.
House Democrats instead created a select committee to examine the origins and impact of the January 6 insurrection, and the panel held a series of hearings that painted a damning picture of a president hellbent on remaining in office even after it became clear he had fairly lost his bid for reelection. The select committee ultimately voted to refer Trump to the justice department for criminal prosecution, but the panel itself could not advance charges against the former president.
“The select committee did an outstanding job of presenting a lot of evidence that they gleaned from their interviews with people who essentially were willing to cooperate, but criminal investigators and prosecutors have the ability to subpoena people,” said Kristy Parker, a former federal prosecutor and now counsel at the nonpartisan nonprofit Protect Democracy.
Trump’s legal troubles stemming from his election lies may only accelerate from here. In Georgia, the Fulton county district attorney, Fani Willis, is preparing racketeering charges against Trump over his efforts to overturn Biden’s win in the battleground state. Most infamously, Trump instructedGeorgia’s secretary of state, Republican Brad Raffensperger, to “find” enough votes to erase Biden’s victory.
Aunna Dennis, executive director of the watchdog group Common Cause Georgia, said Trump’s expected indictment in Fulton county “validates the concerns of folks who don’t want the elections to be interfered with”.
“Even if you are in the highest seat in the country, that does not mean you can trample or mislead or manipulate the voices of voters and the voices of communities,” Dennis said. “We are not a fascist society. We are not an authoritarian society here. That’s not how our democracy works.”
The criminal consequences for Trump’s election subversion campaign stretch beyond the former president as well. In addition to the hundreds of arrests of alleged January 6 participants, some of the fake electors who attempted to falsely declare Trump the winner of key battleground states are facing potential criminal charges as well. Last month 16 fake electors in Michigan were indicted on eight criminal counts, including multiple felony counts of forgery that are punishable by up to 14 years in prison.
Waldman, author of the book The Supermajority: How the Supreme Court Divided America, said prosecutors’ recent actions represented “a season of legal accountability for one of the greatest crimes in American history”.
“This wasn’t just a rally that got out of control, and it wasn’t just Trump flailing around,” Waldman said. “It was a conspiracy involving many people to try to overthrow the basics of American democracy.”
The significance of the indictments extends beyond accountability, Parker argued. As Trump and his allies continue to spread lies about rampant voter fraud and threaten the foundation of America’s system of government, the recently announced criminal charges could send a chilling message to anyone else considering similar anti-democratic efforts in the future.
“We have been kind of living under a question mark ever since the events of January 6, and that question mark has been: are we as a country going to be able to hold this person accountable, even though he was the 45th president of the United States?” Parker said. “If you let a person like that walk away without any kind of accountability, then the chances of something like what we saw on January 6 happening again are extremely high.”
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