The right's defense of Trump is all wrong

The legal cases have been building against Donald Trump, some with more merit than others, and now the biggest shoe has dropped: a federal indictment for conspiring to overturn the results of the 2020 election and contributing to the insurrection at the United States Capitol on Jan. 6, 2021, charges to which Trump pleaded not guilty Thursday. Depressingly, the reaction among Republicans — including some erstwhile Trump critics — has been a chorus of outrage directed at the indictment.

On Twitter and in statements to the media, prominent Republicans such as Florida Sen. Marco Rubio, South Carolina Sen. Tim Scott, and Florida Gov. Ron DeSantis decried the supposed "weaponization" of justice by the Biden administration, complaining that Trump was being prosecuted for statements challenging election results. 

An editorial in the conservative magazine National Review argues that while the facts in the indictment prove Trump’s unfitness to be president, the case is political and shouldn’t stand absent proof that Trump knew his claims about a stolen election were false, asserting that “hyperbole and even worse are protected political speech.”

Yet the indictment stresses that such claims are indeed protected. Trump is being charged for actions, not speech — specifically, multiple schemes to overturn the election results by pressuring public officials to falsify results. Those schemes culminated in an effort to bully then-Vice President Mike Pence into refusing to certify the votes in key states — and in the Jan. 6 riot whose participants had been whipped up by Trump’s calls for Pence to “do the right thing.”

Can it be proved that Trump knew his stolen-election claims were false? There is abundant proof in the indictment that he was repeatedly presented with evidence debunking the allegations.

The defense to this is essentially that the man who wants a new term as president of the United States is not guilty of grave crimes at the end of his first term because he is delusional. The irony is off the charts. But that aside, false beliefs generally do not excuse criminal actions. If a town mayor claims he’s the real heir to a deceased local millionaire’s luxury mansion, that’s free speech. If he tries to uses his office to coerce other public officials or employees into invalidating the millionaire’s will or letting him take over the house, that’s a crime even if he’s persuaded himself otherwise.

Trump defenders also mislead about basic facts. Thus, the National Review editorial falsely implies that it’s unusual for a statute on voter disenfranchisement to be applied to election fraud.

Not all legal charges against Trump should stick. Quite a few knowledgeable commentators, for instance, believe that the criminal case brought in New York earlier this year over payoffs to women claiming sexual relations with Trump is weak and can only bolster Trump supporters’ complaints of legal persecution. But this second federal indictment, while not a slam dunk, is solid (as is the classified documents case). This is confirmed by former U.S. Attorney General William Barr, a Trump appointee and onetime Trump loyalist, who also says that Trump “knew well he lost the election.” 

Ultimately, the pro-Trump spin on the indictment brings to mind Trump’s 2016 campaign-trail joke about voters who would still stick with him even if he shot somebody in the middle of Fifth Avenue. One can only hope that some of those voters will defect as the case moves forward and the evidence shows that Trump did, in fact, try to shoot the Constitution in the Oval Office.

Opinions expressed by Cathy Young, a writer for The Bulwark, are her own.

By Cathy Young

Cathy Young is a writer for The Bulwark.