Let us consider the federal government's second criminal indictment and forthcoming trial of Donald J. Trump, as well as his likely impending criminal indictment and subsequent trial in Fulton County, Georgia. Both these prosecutions are for conspiracies to subvert American democracy, disenfranchise voters and defraud the government. There are also related charges and counts regarding the corrupt obstruction of a congressional proceeding on Jan. 6, 2021, in the former case, and anticipated counts of obstructing justice according to Georgia's racketeering statutes in the latter case. Together, they make it perfectly clear why both of these trials must occur — and must be televised for the world to see.
As Jamelle Bouie of the New York Times writes in his latest column, even if Trump's Democratic opponents must ultimately "defeat him at the ballot box, it would have been untenable for the legal system to stay quiet in the face of an effort to put an end to the American experiment in republican self-government." It is also worth underscoring that Trump's "attempt to overthrow our institutions," in Bouie's phrase, could never have occurred without the distinctively American and undemocratic institution of the Electoral College.
As almost everyone outside Trump's MAGA base knows, the ex-president is guilty of these crimes as charged whether he is convicted or not. What most people do not know, but what Trump and his lawyers know all too well about these charges – despite their empty political rhetoric about "free speech" and "criminal intent," not to mention their ace-in-the-hole argument that #45 was simply relying on the advice of his attorneys — is that there is no legitimate legal defense to these criminal charges.
What passes for a substantive legal defense is the argument that free speech has been weaponized by Trump's opponents. That may work in the court of public opinion, but it will not in a court of criminal law. All Team Trump really has are procedural legal defenses. That is to say, Trump's attorneys will file a few serious motions — and as many frivolous motions as they can — aimed at indefinitely delaying the eventuality of a criminal trial. That's exactly what they did at 4:55 p.m. on Monday in their 29-page response to the prosecution's protective order motion regarding the rules of behavior during discovery.
In short, the Trump defense team's primary tactical goal is to run out the clock in hopes of preventing the trial from occurring before the 2024 election. If Trump regains the keys to the White House, he clearly intends to derail his own prosecution and continue with what Times columnist Maureen Dowd has dubbed his "Coup-Coup-Ca-Choo, Trump-Style."
Dowd reminds us that "we're mid-coup, not post-coup. The former president is still in the midst of his diabolical 'Who will rid me of this meddlesome democracy?' plot, hoping his dark knights will gallop off to get the job done." She continues, "While Trump goes for the long con, or the long coup – rap sheet be damned, it's said that he worries this will hurt his legacy."
I am not sure what "alternative" legacy Trump imagines for himself. As for the one he has cemented in American history, his real legacy is safe. Drawing a term from Gaelic folklore, Dowd calls him "the most democracy-destroying, soul-crushing, self-obsessed amadán ever to occupy the Oval."
As much as we know from Jack Smith's two criminal indictments of Trump and the forthcoming indictment in Georgia, we still know relatively little about the facts behind these indictments. That includes the vast amount of information and evidence gathered from the House select committee that investigated Jan. 6 (but had no subpoena power) as well as that gathered by Smith and Atlanta District Attorney Fani Willis that almost certainly will not be shared with the American public until Trump faces a courtroom trial.
For example, to this point we do not know how many individuals and groups were involved in the coordinated efforts across seven states and the District of Columbia to steal the 2020 election from the American people. The number of knowing or unknowing participants in that conspiracy, at a minimum, will be over 100 and probably closer to 200.
As for the millions of dollars spent by pro-Trump PACs and supporters to fund the coup, or spent by federal and state governments to investigate it, we are all but clueless and still in the dark. Rest assured that Jack Smith and company are following the money, as the hoary but useful saying holds.
Here's one more thing we do not know: what role Mark Meadows, Trump's last White House chief of staff and apparent point man for all things coup, will play in Smith's prosecution of the crimes leading up to the Jan. 6 assault on the Capitol.
That's why the first thing I will look for in the Georgia indictment is whether Meadows is listed as an indicted or unindicted co-conspirator. Will he be left out of the document altogether, as he was in Smith's second Trump indictment?
If that happens again in the Georgia charges, it is safe to assume that Meadows will soon become Trump's No. 1 "traitor," ahead of even former Vice President Mike Pence (and Michael Cohen, Trump's longtime personal attorney). That would strongly suggest that Meadows will be a star witness for the prosecution, both in Washington and Atlanta.
This is of course a familiar scenario in classic racketeering cases regarding organized crime conspiracies. It is often the consigliere who brings down the boss — but never before has the crime boss in such a case been a former president of the United States.
