Trump’s actions weren’t ‘just politics’, they were the highest crime under the constitution

The former president deserves to be held accountable before a jury, just as any other citizen in his position would, writes Lord Charlie Falconer, but be in no doubt: his actions are a betrayal of the very foundations of the US state

Trump’s supporters will say this is the justice system being weaponised against him, by the Biden administration, to derail his re-election (Getty)

The 45-page indictment handed down hours ago against Donald Trump reads like a novel. Except it’s almost certainly true.

The contest in the criminal courts is not likely to be to the facts.

It’s going to be whether what Trump did was criminal. The indictment acknowledges a president can lie in the pursuit of his politics, and that is not necessarily criminal.

But it alleges that what he did constituted a criminal conspiracy to defraud the US by pretending there was a fraudulent election when he knew there was not, a conspiracy to derail the declaration of the result on 6 January when he knew there was no basis for derailment, and a conspiracy to procure that votes lawfully cast were not counted.

It sets out in devastating detail Trump’s dishonest conduct.

Trump and his acolytes argue that the things he did weren’t a crime – they were just ordinary politics. He couldn’t be more wrong. They were the highest crime under the US constitution.

First, he created a narrative he knew to be false that he had won the election and it had been taken from him by electoral fraud. He knew it was false because he was told so by the vice-president Mike Pence, the Department of Justice, the director of national intelligence, the Department of Homeland Security, the key officials in each of the contested states, his own campaign team and every court that adjudicated on any claim of electoral fraud.

Second, he put pressure on electoral officials in key states to reopen their results. He told them lies about evidence of fraud. They all refused.

Third, he found a mid-level official in the attorney general’s (AG) department who drafted a letter for the acting AG to send (the permanent AG had resigned in the face of Trump’s false allegations of electoral fraud), which falsely asserted there was concern about the results and requiring the key states to investigate their results.

The acting AG repeatedly told Trump there was no evidence of fraud. Trump threatened to fire the acting AG if he refused to sign and appoint the mid-level official as AG. In a showdown on 3 January, the acting AG refused and said if he was fired there would be mass resignations in the AG’s department. Trump backed down.

Fourth, he tried to bully and deceive the vice-president into refusing to certify Joe Biden’s victory at the formal counting of the electoral college votes on 6 January 2020 at the Capitol, over which the VP was to preside. Trump was repeatedly advised the VP had no power to refuse certification.

As 6 January approached, Trump stated publicly and falsely that the VP agreed with him on the fraud. He did not. He repeatedly refused to agree not to certify. In the face of the VP’s resolute refusal to cooperate, Trump told him, on 5 January, he would have to attack him in public for this.

Fifth, on 6 January, Trump repeatedly incited the demonstrators against the VP, knowing that the VP had to certify and knowing there was no evidence of fraud. He urged the demonstrators he addressed near the White House to go to the Capitol. He stated the election could be reversed if the VP “did the right thing”.

He knew rioters had broken into the Capitol by around 2.15pm, and that they were openly chanting threats against Pence, yet within 10 minutes he publicly attacked the VP in a tweet for lacking the courage to refuse to certify. Fearing for the VP’s life, his security detail removed him to a secure location.

Despite being repeatedly told by his senior advisers to urge the demonstrators to leave, and in the full knowledge there was violence, he did not issue a tweet urging them to leave until 6.01pm.

He failed in his dishonest attempts.

But were his attempts criminal?

There is not much doubt that the facts as outlined in the indictment are true. Most of what he did is documented or recorded, or corroborated by many witnesses. There is a meeting on 5 January attended only by the VP and Trump. The VP took notes. He says that Trump threatened to publicly criticise him if he did not agree not to certify. The VP says he refused. I can’t see Trump contesting that account when subsequently the VP did certify, and Trump criticised him.

Much of these facts formed the basis of Trump’s impeachment in 2020, but there was no conviction in the Senate because only a handful of Republican senators were willing to convict and therefore it got nowhere near the two-thirds majority required.

If Trump had committed a conventional crime like murder, he of course would be held accountable in the justice system.

But his supporters will say his misconduct is the way he conducted his politics after he lost the election, and that should be judged by politicians in the impeachment or the electorate in the forthcoming election, not by a jury. And they will say this is the justice system being weaponised against him, by the Biden administration, to derail his re-election.

They would be wrong. If any other citizen of the US had used these sorts of means to achieve a goal to which he was not entitled, eg to remain in a job, to prevent a vote that had been lawfully cast from being counted, he would be guilty. As the indictment says, US law applies to every citizen. Trump has immunity from suit while president, but not after he has retired, after which point he can be held accountable by the justice system for any crime he committed in office.

If it would be a crime for anyone else, it should be for Trump. All the more so when the consequences of this crime were to put at threat the continuing democracy of the USA.

Knowing his claims of electoral fraud were false, he tried to set aside the democratic verdict and remain in power – a subversion of the foundations of the US state. It is also a betrayal of Abraham Lincoln’s plea that those who died in the civil war shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the Earth.

Maybe the indictment will increase support for Trump, but it is for the special prosecutor to decide whether he thinks a crime has been committed, not what the politics are if it has.

Trump deserves to be held accountable before a jury. Let them hear the evidence, and decide whether he’s a criminal or just a lying politician.

Lord Falconer served as lord chancellor and secretary of state for justice under prime minister Tony Blair from 2003 to 2007