By Petr Svab
The indictment of former President Donald Trump for his trying to reverse the results of the 2020 election stretches the law to criminalize legal advice, according to a former prosecutor who warned of the legal precedent the case would set.
“We are very far down the road of criminalizing thought, criminalizing advice of counsel,” warned Brett Tolman, a former federal prosecutor and counsel to two GOP heads of the Senate Judiciary Committee.
“This is not a righteous prosecution,” he said.
Special counsel Jack Smith on Aug. 1 filed four charges against Mr. Trump: conspiracy to “impair, obstruct, and defeat” the collection and counting of electoral votes; conspiracy against Americans’ right to vote; obstruction of the electoral vote counting by Congress on Jan. 6, 2021; and conspiracy to obstruct the electoral vote counting (pdf).
The crux of the charges rests on the assumption that Mr. Trump didn’t genuinely believe that the election victory was unlawfully taken from him. It then posits that his attempts to challenge the results were unlawful.
Yet four of the six alleged co-conspirators in the endeavor are lawyers and another was a Department of Justice (DOJ) official, all advising Mr. Trump on legal strategies that could reverse the election results.
That is a major hurdle to prosecution that the indictment ignored, according to Mr. Tolman.
It’s true that Trump didn’t need to succeed in his efforts in order to be guilty of a conspiracy—simply agreeing to a plan and taking a single step to realize it is enough.
But “you still have to have criminal intent,” Mr. Tolman explained.
In his view, if Mr. Trump acted on the advice of his lawyers, even bad advice, that would constitute a formidable defense.
“If they have a plausible legal argument and they advised Trump on that, you have a problem with criminal intent,” he said.
Much of this problem comes down to the fact that the behavior in question isn’t specifically singled out in the statutes that underlie the charges, he argued.
The indictment, for instance, dwells substantially on the fact that Mr. Trump and his lawyers organized alternative slates of electors to challenge the election results in several states.
But it cites no law that would specifically make that a crime.
The indictment reads as if the prosecutors were listing behavior they find reprehensible and then looking for a statute that could be used to criminalize it, Tolman suggested.
“It did not articulate any of the facts that justify the particular statutes that were used,” he said.
The fraud law it cites, for example, is normally used in cases that involve “taking resources of the United States,” such as improper healthcare billing.
“It’s never been used in this fashion,” he said.
The conspiracy against rights statute is normally used in circumstances that involve the government using its power to brutalize citizens, he explained.
“That law was passed during the civil rights era when law enforcement was denying the rights of individuals, oftentimes based on their race, when they were trying to exercise their constitutional rights, and were using the full force of law and assaulting, injuring, and even killing, in instances, an individual.”
The last statute, obstruction of government, requires corrupt intent, again coming down to whether Trump followed the advice of his lawyers.
“We should be really, really concerned about a prosecutor who wants to be creative and use statutes that have never been tested or used in this fashion and to do so against the leading opposition contender for president of the United States,” Tolman said.
The indictment presents evidence that Mr. Trump followed a plan by at least one of the alleged co-conspirators to try convince Vice President Mike Pence to violate the Electoral Count Act (ECA), which sets procedures for counting the electoral votes and resolving objections. The alleged co-conspirator argued that the vice president can disregard the ECA procedures because some legal scholars have questioned whether the law is constitutional and because ensuring the legitimacy of the election results was more important.
But that still wasn’t necessarily criminal, according to Tolman.
“There are many instances in our history of the country where you committed the act and then tested it out in court because you believed you were right, you believed that the Constitution allowed it or you believed it was legally an unlawful law,” he said.
The alleged co-conspirator went as far as proposing that the vice president could disregard the electoral votes from states where Mr. Trump challenged the results and declare Mr. Trump the winner based on the remainder of the votes.
None of that happened. Mr. Pence refused these suggestions, despite Mr. Trump’s pressing the issue on several occasions, the indictment details.
Even if it did happen, however, the issue would have been resolved by courts, Mr. Tolman explained.
“The civil system is well equipped to handle it and, in the end, it did handle it,” he said, pointing to Trump’s ultimately failing on his election lawsuits.
“That’s why you have a Supreme Court. It would have been resolved the way our government is supposed to resolve it. Not by bringing a half-baked case on novel legal theories with statutes that were not intended to be used as such—especially if it didn’t happen,” he said.
His impression is that the indictment serves to channel resentment against Trump for the Jan. 6, 2021, protest and riot at the U.S. Capitol.
“They’re using the emotion of January 6 as the justification to be creative with this law,” he said.
“That is not the role of a prosecutor.”
He pointed out that the facts detailed in the indictment resemble on multiple points the efforts of some Democrats to challenge the legitimacy of the 2016 election results.
“There was an effort to stop electors and to argue that electors should not give it to Donald Trump and we heard some of the same rhetoric. That’s the same sort of fact pattern that apparently this indictment is aimed at,” he said.
“The difference is, January 6 happened and so they feel justified—the end justifies the means—and I’m trying to say this is not how our criminal justice system should be operating right now.”
The prosecutors have an incorrect understanding of their role, he opined.
“The Supreme Court in a very well-known decision indicated that the biggest role of a federal prosecutor was not to get a conviction, but that justice was done,” he said.
It may be that prosecutors perceive some behavior as immoral, but that doesn’t necessarily make it criminal and it’s not their job to creatively reinterpret the law to use as a cudgel against it, he suggested.
“That legal relativity will be the downfall of our country,” he warned.
The interest of justice should restrain a prosecutor, rather than unleash him, he argued.
“We have been whittling away at that for quite some time,” he said.
He bore no illusions about the results of the case, expecting Mr. Trump to be “running for president from a prison cell.”
“He’ll be convicted and he’ll be sentenced to a very long prison sentence,” he predicted.
If so, the case will set a precedent that could easily spiral into a tit-for-tat if the GOP eventually takes back the White House and the DOJ.
“You get the right people in those positions and there’s no question in my mind—they will start prosecuting the left,” he said.