Dear Reader,

The January 6 indictment, it turns out, is hardly about January 6 at all. 

As we got our first look this week at DOJ Special Counsel Jack Smith’s momentous indictment of former President Donald Trump for trying to steal the 2020 election, it quickly became apparent that the prosecutorial focus is far more on the run-up to that fateful day than on the actual physical assault on the Capitol. While Smith’s charging decisions might disappoint those who harbored visions of insurrection and treason, the Special Counsel’s approach here is legally sound and tactically savvy. 

Quick story for you. When I worked at the New Jersey Attorney General’s Office, I supervised all county-level prosecutors across the state. At one point, I learned that a particular local had gotten into the habit of serially overcharging cases. For example, he’d automatically start by charging every killing as a first-degree murder and then he’d hope for either a compromise jury verdict or a plea deal to a lesser degree of murder or manslaughter. So I called him up and had one of those uncomfortable conversations. I told him the concern was that, in many instances, the facts simply didn’t match the statutory definition of the inflated charges he was filing. I’ll always remember his response for its casual acknowledgment of habitual misapplication of prosecutorial power: “Yeah, I hear you, but it gives us leverage.” 

This, folks, is not what prosecutors ought to be about. Sure, the temptation is there to blast every charge over the top and figure, hey, if I get some part of this in the end, it’s a win. But that’s a bush league move (to put it gently) and, more to the point, it’s strategically unwise. Neither judges nor defense lawyers nor (most importantly) juries are impressed with an overcharged case, or a case that requires contortions of reason to justify the top charge. Smart, experienced, fair prosecutors know that the best approach is to charge the most serious crime that you can amply support with evidence and easily explain to a jury. Keep it simple and keep it strong. 

Smith has done just that with his new indictment. I suppose “simple” isn’t quite the right word because Smith’s charges, by necessity, are sprawling. They cover a monthslong effort by Trump and others – primarily, his stable of corrupt-attorneys-turned-co-conspirators – to pull all available levers of governmental (and nongovernmental) power and coercion to flip the election results in seven states, and the presidential outcome as a whole. 

Smith’s charges, though unprecedented in that they come against a former president, are ambitious but also routine. The primary criminal violations at issue here are among the most commonly charged crimes in the book: conspiracy, fraud, obstruction. (There’s also a more unusual charge of violating the rights of the American people to vote and have our votes counted, which relies on the same core of conduct as the other charges.) Think of it this way. A conspiracy is simply an agreement between two or more people to commit a crime. A fraud is using lies to steal something; often money but, in this case, an election. And obstruction is an effort to mess with any constitutional process. The facts laid out in Smith’s indictment are astonishing and will someday be recounted in the history books; the actual charges are humdrum. 

I’m not saying it’ll be a cakewalk to prove the case here. Smith will have to establish Trump’s criminal knowledge and intent within the mishmash of frequently-confusing and often-contradictory statements by the former President. And Trump will raise defenses based on the First Amendment and claims that his attorneys blessed his conduct. Carry no illusions: this won’t be easy for Smith. But there’s a difference between easy and simple. Easy is nice if you’ve got it; but when you don’t, simple becomes all the more important. 

So how about those glitzier charges that were left out of the indictment? Let’s start with incitement of a riot, based on Trump’s infamous “will be wild” tweet and then his “fight like hell” speech on the Ellipse shortly before the Capitol attack. The problem is that Trump would have a substantial First Amendment defense; this was heated political rhetoric, he’d argue, but it’s not criminal. Plenty of politicians, Democrats and Republicans alike, have indeed exhorted their supporters to “fight like hell” and Trump did, in fact, say in the very same speech that his people should “peacefully and patriotically make your voices heard.” Roll your eyes – I’m with you, I completely understand the subtext, and I understand that Trump surely understood it, too – but this is an extraordinarily difficult case to prove to a jury, unanimously and beyond a reasonable doubt. And even if it did result in a conviction by a trial jury somehow, how much faith do you have that our current Supreme Court would let that result stand? (I mean this as a comment partially on the Court’s current results-driven partisanship and partially on its appropriately expansive view of the First Amendment.) 

Then there’s the attempted-to-overthrow-the-government charges, insurrection and treason and the like. Yes, this is essentially what Trump had in mind, though I suppose there’s some wiggle room between “steal the presidency” and “overthrow the government.” But why charge the most drastic crime in the books – and the most politically-charged one, in a case that already will inevitably be marked by politics – when a conspiracy or a fraud will do the trick? It’s easier to prove that Trump tried to defraud the American people and deprive them of their fundamental right to vote than to prove that he intended to overthrow the whole of government. A conviction on Smith’s more straightforward charges will amply do the job: it will send the necessary deterrent message and it will visit meaningful consequences upon the perpetrators. 

Smith has now made public statements twice, once after each of his Trump indictments. Both times, the man has looked positively miserable behind the podium, and he has said as little as possible; in total, he took up less than five minutes of air time. Smith’s demeanor in front of the camera screams, “Let me get this crap over with so I can give you jackals the bare minimum and get on with it.” To be clear: I mean all of this as praise. 

Smith isn’t perfect. He has a mixed record (to put it charitably) over his prosecutorial career, whiffing on prior high-profile prosecutions of prominent politicians. But he’s done an admirable job here moving the case quickly and with focus – in contrast to Attorney General Merrick Garland, who whittled away a precious year and a half doing nothing much towards Trump before he appointed the Special Counsel in November 2022. Smith is now about to pilot the most consequential criminal prosecution in this country’s history. There was no need for him to reach or embellish. He charged the case straight and strong, he left out the drama, and he’ll benefit from it in the end. 

Stay Informed,

Elie

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