Aziz Huq Writes About the Third Indictment Against Trump

‘Jack Smith Has Made Sure That the System of Laws Still Holds’

Another day, another indictment of Donald Trump. That’s certainly how it’s starting to feel.

But could this time be different?

Until recently, no American president had ever been charged with a crime. Now, it’s happened three times to Trump in the span of a few months. It’s unprecedented, with potentially long-lasting consequences for our politics and the law. In the near term, one might expect the legal onslaught to do real damage to Trump’s 2024 presidential campaign. Yet the previous indictments haven’t hurt him in the Republican primary and may have even boosted his polling numbers and donations.

But this indictment is on more serious charges — an attack on American democracy. Trump’s effort to overturn the 2020 election amounted to a conspiracy to defraud the United States and led directly to the deadly riot at the U.S. Capitol, according to federal prosecutors. Jan. 6 “was fueled by lies,” special counsel Jack Smith said in announcing the indictment, “lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting, and certifying the results of the presidential election.” That may be harder for at least some voters to dismiss than an episode involving hush money to a porn star or holding on to some government documents.

So we asked some of the smartest political thinkers and legal observers: Will this indictment be different than the others?


Jack Smith has ‘taken the harder path’

By Aziz Huq

Aziz Huq teaches law at the University of Chicago and is the author of The Collapse of Constitutional Remedies.

The new Trump indictment is both narrow and broad in all the right ways. It is narrow insofar as special counsel Jack Smith did not charge witness tampering, wire fraud or mail fraud charges that (on some press accounts) had been contemplated. It is broad in the sense that it widens the lens from the Jan. 6 violence to allege a sweeping gamut of efforts by Trump and his six unnamed co-conspirators to twist a variety of official tools into instruments of election subversion: The Jan. 6 riot does not appear, indeed, until page 35 of a 45-page indictment.

This is exactly right: The central challenge to democracy here (and globally) in the past decade has been the weaponization of official power — of law — against the exercise of popular judgment though fair elections. That campaign climaxed on Jan. 6; but to focus on January 6 alone would miss that central threat. By sloughing off mail or wire fraud, but zooming out to encompass the various state and federal-focused election subversion schemes, Jack Smith has precisely captured the core of the moral case for prosecuting a former president who is running again for office. When the offenses charged demonstrate a contempt for the basic principle of popular choice, that prosecution does not diminish democracy in the slightest: It puts its shoulder to the wheel, and pushes it forward.

If Smith had been interested in simply putting Trump behind bars out of raw political animus, he would have charged the omitted offenses, which are easier to plead and prove than some of the conspiracy charges in the actual indictment. That he’s taken the harder path, and sculpted his indictment to showcase the threat to democracy, is a tribute to his savvy and his commitment to the rule of law.

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