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Former Federal Prosecutor: Trump Has No Credible First Amendment Defense

The latest indictment may reduce support for Trump among less extreme Republicans, says Dennis Aftergut.

We unpack the explosive new criminal charges against Donald Trump for his efforts to overturn the 2020 election results, marking his third indictment in four months as he continues to campaign for reelection in 2024. The four-count indictment unveiled Tuesday by special counsel Jack Smith alleges Trump conspired to defraud the United States by preventing Congress from certifying Joe Biden’s victory, pushing fraud claims he knew to be untrue, pressuring state and federal officials to alter the results, and inciting a violent assault on the Capitol. The most serious charge against Trump carries a maximum penalty of 20 years in prison, and he is set to appear in federal court later this week for his arraignment. “Donald Trump tried to strip away, from all of us, our democracy and our individual rights to vote to protect himself and remain in power,” says Robert Weissman, president of Public Citizen. We also speak with former federal prosecutor Dennis Aftergut, who says this case could represent a turning point even among Republicans and reassert the rule of law. “Presidents are not kings,” says Aftergut.

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: For the first time in U.S. history, a former president has been criminally charged with conspiring to overturn an election. On Tuesday, Donald Trump was indicted on four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, tampering with a witness, and conspiracy against the rights of citizens — the right of their vote to be counted. This is the third time in four months the former Republican president has been criminally charged as he campaigns to regain the presidency in 2024. No other president has ever been indicted before.

The Department of Justice special counsel Jack Smith announced the indictment charges in a short statement. He did not take questions from the press.

JACK SMITH: The attack on our nation’s Capitol on January 6th, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies, lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting and certifying the results of the presidential election.

The men and women of law enforcement who defended the U.S. Capitol on January 6th are heroes. They are patriots, and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives on the line to defend who we are as a country and as a people. They defended the very institutions and principles that define the United States.

Since the attack on our Capitol, the Department of Justice has remained committed to ensuring accountability for those criminally responsible for what happened that day. This case is brought consistent with that commitment, and our investigation of other individuals continues. In this case, my office will seek a speedy trial so that our evidence can be tested in court and judged by a jury of citizens. In the meantime, I must emphasize that the indictment is only an allegation and that the defendant must be presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

AMY GOODMAN: The most serious charge against Donald Trump carries a maximum penalty of 20 years in prison. The case was assigned to U.S. District Judge Tanya Chutkan, who was appointed by President Obama, has handed down sentences in January 6th insurrection cases that were harsher than prosecutors recommended.

Tuesday night on CNN, Trump’s lead attorney on the case, John Lauro, called the indictment an attack on Trump’s free speech.

JOHN LAURO: This is politics. This indictment is about pure politics. We engage in vigorous debate in this country about politics. What we don’t do is criminalize political speech. This indictment is a game changer. It’s the first time that we’ve taken political speech and said we’re going to criminalize it, by the party that’s in control against the party that’s contesting the next election, where the two individuals involved are going to be running for office. That is an incredible set of circumstances.

AMY GOODMAN: Trump has been ordered to make an initial appearance in federal court in Washington, D.C., Thursday. The 45-page indictment against the 45th president of the United States also references six unnamed co-conspirators. They likely include four of Trump’s lawyers — Rudy Giuliani, John Eastman and Sidney Powell — as well as Jeffrey Clark, a former Justice Department official.

This all comes after Trump pleaded not guilty in June after he was charged with unlawful retention of classified government documents after leaving office and obstruction of justice, in another Jack Smith case. Last week, prosecutors in that case added three more criminal counts that accuse Trump of ordering employees to delete security videos while he was under investigation. In March, a grand jury convened by the Manhattan district attorney indicted Trump for falsifying business records to hide hush-money payments to porn star Stormy Daniels before the 2016 election. Meanwhile, Trump faces a fourth criminal investigation in Georgia over accusations he sought to undo his 2020 election loss in the state.

For more, we’re joined by two guests. In Washington, D.C., Robert Weissman is with us, president of Public Citizen, one of the groups organizing nationwide “Not Above the Law: Trump Indictment Rapid Response” rallies in support of accountability this Thursday, the day of the arraignment. Also with us, Dennis Aftergut, former federal prosecutor. He’s currently of counsel to Lawyers Defending American Democracy. His piece for Slate is headlined “Jack Smith’s Jan. 6 Trump Indictment Is a Prosecutorial Masterstroke.”

Well, Dennis, let’s begin there. Why? Can you respond to the significance of this indictment and what these four counts are all about?

DENNIS AFTERGUT: First, it’s an honor to be here.

The significance relates to the fact that this is an indictment that will bring about not just the trial of the century but the trial of all American history. This is an indictment about lies to disenfranchise the American people and about a man who would be king. We fought a War of Independence in 1776 to 1783 to prevent that. That’s why this case is more important than any other.

JUAN GONZÁLEZ: But, Dennis Aftergut, I’d like to ask you — this whole issue of these six co-conspirators, they were not indicted along with him. Obviously, the government probably is hoping for some of them to turn. But if some of them ended up being indicted, what would that do in terms of a timeline for a trial of this kind?

DENNIS AFTERGUT: Nothing. What makes this indictment so elegant are two key things. One, that it was only Trump who was indicted. You can be confident that the others will not be indicted until after a trial date is set, so that the trial of Trump goes first. And the other element of elegance is that all of the so many facts alleged, none of which would be alleged if Jack Smith couldn’t prove them, all of them go to all four counts. That streamlines the trial to ensure that if it is set sufficiently early, the case will finish well before not just the November election, but hopefully before the Republican nominating convention in July.

JUAN GONZÁLEZ: And I’d like to bring Robert Weissman of Public Citizen into the conversation. Your response to the indictment and also to the Trump campaign’s statement, which was released on his social media site Truth Social, which said, in part, quote, “The lawlessness of these persecutions of President Trump and his supporters is reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes”?

ROBERT WEISSMAN: Yeah, thanks, Juan. And hello to you and Amy and Dennis.

I think Dennis gets it exactly right in talking about how consequential this indictment and the trial will be in American history. You know, I think one of the things that’s important about the indictment, it tells the story, basically the story we know, that was revealed, that we saw in real time and that was detailed by the January 6th committee. But the charges, which might sound legalistic at first, are really about that conspiracy over many months to overturn the election. And one charge, in particular, I think, gets to the heart of the matter, which is not just about interfering with an abstract government proceeding, but denying — a conspiracy to deny people their right to vote. That’s a civil rights statute tracing back to the Civil War era, and it really gets to the heart of what happened, which is that Donald Trump tried to strip away, from all of us, our democracy and our individual rights to vote to protect himself and remain in power.

I think as this case — as the events of January 6 have receded in time and the Trump presidency has receded in time, it’s possible to forget how horrible that period was, the constant assault on decency, people of color, immigrants and democracy. And this case brings that back to the fore. We can’t let him become a caricature, a Saturday Night Live character. He was a real person who put us through the ringer and hopes to do so again.

His comments, that you read and others that have come out from the campaign, leaving aside the outrage of degrading the experience of people in the Holocaust or others who have suffered in comparison to his legitimate prosecution, remind us that the strategy he’s going to pursue, which is always to take fair accusations against him and throw them against his opponents. And it’s going to be up to all of us to stay vigilant, not to let justice to recede in the background as something that’s going on in the back of our heads, but to stay attentive and engaged and demand accountability take place. That’s what drove this case forward. It wouldn’t have happened but for people staying attentive, but for the January 6th committee. And I think to make sure we get the outcome we should get is going to require people to stay attentive and stay engaged.

AMY GOODMAN: I want to return to a video posted Tuesday by the former Clinton labor secretary, Berkeley professor, UC Berkeley professor, Robert Reich, about how and why Trump could be barred from the ballot.

ROBERT REICH: Trump could face criminal charges for inciting an insurrection, but that’s not necessary to bar him from the ballot. Secretaries of state and other election officials across the country have the power to determine whether candidates meet the qualifications for office. They have a constitutional duty to keep Trump off the ballot, based on the clear text of the U.S. Constitution.

Now, some might argue that voters should be able to decide for themselves whether candidates are fit for office, even if they’re dangerous. But the Constitution sets the bar for what disqualifies someone from being president. Candidates must be at least 35 years old and a natural-born U.S. citizen, and they must not have engaged in insurrection after they previously took an oath to defend the Constitution. Section 3 of the 14th Amendment has already been used to disqualify an insurrectionist from continuing to hold public office in New Mexico, with the state Supreme Court upholding the ruling. This is not about partisanship. If a Democrat attempts to overthrow the government, they should not be allowed on ballots, either.

AMY GOODMAN: So, that’s the former Clinton labor secretary, Robert Reich, now a UC Berkeley professor. Rob Weissman, I’m wondering your response to this. I mean, President Trump was not charged with seditious conspiracy. Also, Eugene V. Debs ran from prison, though he also was not charged with this or imprisoned for this.

DENNIS AFTERGUT: Right. So, what Robert Reich is talking about and references there is Section 3 of the 14th Amendment, which, as he says, disqualifies people who have taken an oath of office to the government and then have engaged in insurrections — again, another post-Civil War amendment. It does absolutely seem to apply here. It is very clear that Trump does not need to be charged with insurrection, or really charged with anything or criminally convicted, to be disqualified for having supported and participated in an insurrection. Congress could take action to disqualify him. That’s not going to happen. But I think we are going to see a lot of cases brought before secretaries of state across the country saying, “Look, you’re in charge of making this decision. He drove an insurrection. He should be disqualified from the ballot in your state.”

JUAN GONZÁLEZ: And, Robert Weissman, what do you think will be the impact on the hard core of Trump supporters, who, no matter what he has been accused of or indicted for, continue to rally behind him?

ROBERT WEISSMAN: I think it makes all the sense in the world to sort of think through the political ramifications of this, but also to say first that this was a case brought to defend the democracy. And I think that was the imperative. I think worries about the political consequences may have delayed the bringing of the case in the first place. Jack Smith moving forward, I think, was a decision not to do a political calculus, but just to enforce the rule of law, demand accountability and say, “If you launch a coup against the United States of America, you must be held criminally accountable.” And I agree with that.

In terms of the political ramifications, you know, we’ll have to see. I think for the hardcore base of support for Trump, there is, as he once said, literally nothing he could do that would shake their belief in him. And in fact, every effort to hold him accountable becomes part of the story of how he’s aggrieved, attacked and deserves more support. That hardcore base of support, though, is only a portion of the party and only a smaller portion of the country. There are a lot of people who support or might support Trump, but who, I think, will reflect on all of these criminal charges against him, and also specifically what he did after the election and up to January 6. And we’ll see how it all plays out. I don’t think it’s preordained at all. But I’m hopeful that presenting these facts, reminding people of the horror of what happened, will help them arrive at good judgments.

AMY GOODMAN: I mean, it’s not an insignificant number or percentage of people who are supporting Trump. In fact, the numbers keep going up. He is neck and neck with Biden, if the two of them face off in 2024. BBC says an average of opinion polls from July 31st suggests he has a commanding lead of 37 points over his nearest rival, Florida Governor Ron DeSantis. The story was headlined “Why Trump’s poll lead went up after criminal indictments.”

So, I’m wondering, Dennis Aftergut, if you could respond to that and then also talk about the judge in this case, Tanya Chutkan? Very interesting, appointed by Obama, I think, in 2013. She has gone beyond what prosecutors asked for with some of the January 6th defendants in terms of sentencing. She also made a decision in a Trump case having to do with him not wanting to hand over documents, ruled against him. The significance of Tanya Chutkan in Washington, D.C., presiding over this case, as opposed to Aileen Cannon in Florida presiding over the other Jack Smith case, which is around the Mar-a-Lago documents and the cover-up there, who is a Trump appointee?

DENNIS AFTERGUT: There’s so much to unpack in that question.

AMY GOODMAN: Take your time.

DENNIS AFTERGUT: With respect to Judge Chutkan, you referred to her decision against Trump earlier, in November of 2021, in which she denied his request for executive privilege to bar the January 6th House committee from getting documents from the White House. She ruled for that House committee. And in doing so — this relates back to what I said earlier — she said, “Presidents are not kings.” Presidents are not kings. This relates to what Robert said at the beginning, which is absolutely correct: Jack Smith and the Justice Department are defending the rule of law and the American Constitution. Political calculations are not their business.

That said, three quick points on the politics. First, political votes can only take so much water. There’s an accumulating effect. Second, unlike national security documents in the Mar-a-Lago case, Americans witnessed the insurrection on January 6th. They witnessed, as you referred to earlier, Amy, or Jack Smith did in his statement, the assault on Capitol police defending our Constitution. That makes a huge difference. And last, you see over time the accumulating effect. You see that growing numbers of even Republicans have been dropping off of Trump’s support, even as you see — even as you see his support increasing among Republicans, as you said. And yesterday you saw Vice President — former Vice President Mike Pence turn on Donald Trump and say this is why he should not be returned to office. Previously, Pence said that he should not be indicted for taking bad legal advice. He seems to have changed his mind. This indictment has every prospect of peeling off some Republicans — not the hardcore, as Robert said, but certainly, in the general election, clear-thinking, independent Americans who turn elections.

JUAN GONZÁLEZ: And, Dennis Aftergut, I wanted to ask you: This indictment, did you find any new information in it that had not previously been revealed?

DENNIS AFTERGUT: Yes. But the key elegance, as I said earlier, is in the way it’s done, the charges that are presented, the exclusion of other defendants from this indictment. But, yes, there are some pieces of new information. Just for example, Mark Meadows, Trump’s former chief of staff, is in the middle of the fake election conspiracy as alleged in this indictment, but he’s not charged. And that is telling us, by negative inference, that he’s cooperating. We also learned, as Amy said, about the other co-conspirators. We didn’t know exactly who they would be. They are likely to be charged later, including Rudy Giuliani and John Eastman.

And we also learned — this is a small tidbit, but it’s interesting — that Mike Pence took contemporaneous notes in January of his conversations with Donald Trump. Two things about that of significance. Number one, it strengthens the case, the evidence, because Jack Smith now has those notes. And number two, why does someone take contemporaneous notes? It tells us that in late January, the former vice president, who had served loyally the president of the United States for four years, did not trust him any further than he could throw him.

AMY GOODMAN: Rob Weissman, before we end, on this issue of Mike Pence, quite interesting that he might not even qualify to be in the debate, in the first Republican presidential debate, according to his poll numbers and the support he’s getting. But he could be a key witness in this case, the rival of President Trump for the presidency in 2024. If you could talk about Lauro, the new lawyer? President Trump is paying out tens of millions of dollars, apparently, though he’s not known for paying lawyers, and there’s been a whole question of where he’s getting this money from. Did he raise it falsely, asking for support for the whole movement, but now for legal fees, etc.? If you can talk about Lauro’s point? I mean, Trump wasn’t charged with seditious conspiracy. He wasn’t charged with insurrection. But Lauro talking about the attack on free speech?

ROBERT WEISSMAN: Right. Again, this is an example of Trump and his minions using legitimate accusations against him and throwing them against his opponents. There is no attack on free speech here. Donald Trump has attacked people’s free speech throughout his long career, including before he got into politics. The argument here is that, well, Trump was just saying stuff, and he’s allowed under the First Amendment to say stuff, including things that aren’t true. But, of course, the allegation is not that he was just saying things. It’s that he was leading a conspiracy to overthrow the results of the election. People are saying, for example, criminals use speech all the time: “This is a stickup. Give me the money.” That’s not protected free speech. Just because you speak doesn’t mean you get protected — protection from criminal prosecution, if you’re speaking as part of a criminal enterprise.

The other thing it’s clear the Trump lawyers and Trump legal team are going to argue is that Trump did not — that Trump truly believed that he won the election. And one thing that the indictment does very well is explain not just the objective fact that he lost the election, but that everyone around him, except for his co-conspirators, everyone with credibility, everyone with authority, everyone with knowledge, told him over and over again that he lost. Two attorneys general, the head of election security of the U.S. government, his vice president, his campaign, his campaign pollsters, state election officials, all of whom supported him and wanted him to win, told him that he in fact lost. So his claim that he believed this was a victory is not a credible claim and, I think, not going to be a strong defense in this case going forward. The claim about the First Amendment protections, I think, is pretty laughable.

AMY GOODMAN: Well, Rob Weissman, I want to thank you for being with us, president of Public Citizen, one of the groups organizing nationwide “Not Above the Law: Trump Indictment Rapid Response” rallies in support of accountability Thursday, the day of the arraignment, and Dennis Aftergut, joining us from Sonoma, California, former federal prosecutor, currently of counsel to Lawyers Defending American Democracy. We’ll link to your piece in Slate, “Jack Smith’s Jan. 6 Trump Indictment Is a Prosecutorial Masterstroke.”

Coming up, the war in Ukraine, as Russia continues to attack grain ports in Ukraine, while Kyiv escalates drone strikes in Moscow. Stay with us.

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AMY GOODMAN: “Red Football” by Sinéad O’Connor. She passed away last week at the age of 56. To watch our web exclusive, as well as the interview we did on Democracy Now! on Sinéad, go to democracynow.org.

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