Former President Donald Trump was handed an indictment with four charges on Aug. 1, courtesy of Special Counsel Jack Smith. Today, August 3, he will appear in court in Washington, DC, where he is expected to plead not guilty. The charges relate to actions taken on or around the 2020 presidential election and appear to be an extension of the House Jan. 6 Committee’s work. How serious are the allegations? Does Trump have a viable defense?
Liberty Nation spoke with Legal Affairs Editor Scott D. Cosenza to find the answers.
Mark Angelides: Scott, I think these new charges didn’t take anybody by surprise because Trump had been hinting that such an indictment was coming down the pipeline. It landed on the evening of Aug. 1, just in time to make the morning headlines. Could you give us a brief summary of what charges Trump is facing?
Scott D. Cosenza: The indictment alleges four federal crimes that accuse Trump of lying about the results of the 2020 presidential election. The prosecution’s theory is he committed fraud against the people and frustrated the government from performing one of its principal roles, specifically, the issuance of that election and the certification of its results.
In other words, it all comes down to whether or not Trump legitimately believes that the election was stolen from him.
An Indictment That Depends on Belief
MA: As someone who has watched his former Twitter account, his Truth Social account, and the statements that he’s been making for the last two and a half years, I would say that he genuinely believes the election was stolen. Why is intent so important here, Scott?
SDC: In a classic common law criminal analysis, and to prove criminality, you must have two facets: mens rea and actus reus [the guilty act]. The mens rea is a guilty mind, or the intent to commit a criminal act. Special prosecutor Jack Smith, or the prosecutor at trial, if different, has to prove that Trump did not believe the election was stolen from him.
MA: Of what other crimes has Trump been accused in this latest indictment?
SDC: One of them is the frustration of the election certification that took place on Jan. 6.
MA: How does Smith propose to prove that Trump interfered with that when he wasn’t there inside the House of Representatives?
SDC: Well, I don’t know for sure. The indictment suggests that Trump declined to take certain actions that he might have otherwise taken. It says that Trump “repeatedly refused” to approve a message directing protesters away from the Capitol complex.
Donald Trump (Photo by Scott Olson/Getty Images)
When examining the charges, let’s remember that this is a political decision. It’s not like the facts demanded an indictment of Trump. The charges suggest that Smith and his team turned to the law books to see where they might fit Trump’s behavior -- to stomp, shove, and hammer a square peg into a round hole to find criminality in Trump’s words and actions.
So, I don’t want to pretend when we talk about the charges that that’s not what happened. All these other things, we can sort of paint around the edges and pretend that we’re not really talking about what we are, which is somebody gave marching orders to go get Donald Trump, and that’s precisely what Smith did. He went and got Donald Trump.
MA: When Smith unveiled the indictment at the press conference, he seemed pretty adamant. There’s been some concern that, wherever one stands on Trump, Smith is engaging in the problematic behavior he did while prosecuting Bob McDonnell.
SDC: Bob McDonnell was the governor of Virginia that Smith prosecuted. He used novel applications of federal corruption charges, and McDonnell was convicted. Then, on appeal, the United States Supreme Court threw out the charges and ruled for McDonnell unanimously. McDonnell said Smith would rather win than get the law right. After all, he charged McDonnell’s wife as well.
MA: One final question for you, Scott: How will this proceed to court?
SDC: I expect Trump’s team will work to delay any proceedings until after the election. At this point, Trump’s best defense is to win the presidency, cancel the prosecution, and pardon himself for any and all federal crimes he may have committed.
