Our Fragile Freedom

Pondering a historic document

(Photo by Drew Angerer)

In an era of unprecedented upheaval, it is difficult to find suitable context and perspective for the latest indictment of Donald Trump. 

After all, this isn’t the first indictment he has faced, or even the first in federal court. It isn’t the first time we have had to grapple with his moral failings, the unleashing of political violence, or the degradation of our constitutional order. 

Much of what is in the document made public on Tuesday we knew before. We saw it unfold on TV. We read the reporting of its aftermath. We heard the gripping public testimony in front of the bipartisan House Select Committee that investigated the insurrection of January 6. 

It wasn’t even that the indictment was a surprise. For a long time, the investigation has been in the public consciousness. After Trump announced that he had been told he was a target, it was mostly a matter of when, not if. 

It is important to keep in mind that this latest indictment does not charge Trump with arguably the gravest potential crimes, like insurrection or sedition, even though many who watched in horror the events leading up to and cresting on January 6 think it obvious he is guilty of both. 

Randall Eliason, a former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia, argued in a New York Times opinion piece titled “What Makes Jack Smith’s New Trump Indictment So Smart” that the special counsel wisely chose to limit the scope of the case (and the number of defendants) to just Trump despite the six other unnamed but easily identifiable co-conspirators. Smith did this, the piece points out, in order to proceed quickly to trial and yield the best chance at conviction. “Although it might have been psychologically gratifying to see Mr. Trump charged with sedition, the name of the legal charge is less important than the facts that will make up the government’s case,” Eliason wrote. 

In other words, Smith decided not to try to prove too much; keep the charges few and based on what facts he believes are most likely to convince a jury — and whatever part of the public may be open to persuasion. 

Let us stop for a moment to ponder these facts and the narrative they tell. They are chilling, but we must remember the Department of Justice will have to prove them in a court of law. Trump is presumed not guilty until and unless he is proven otherwise. He has every right to mount a vigorous defense. It’s probably best for the country that his lawyers fight hard and smart. The more thoroughly this case is adjudicated, the more its conclusion is likely to be strengthened by the process. 

But in reading the indictment, all who love and care for our precious republic and its democratic traditions should feel a deep shudder of fear that we were driven to such a precipice. The writing itself is not fancy — no stacking of dependent clauses or diving into a thesaurus in search of adjectives. Reading the introduction aloud, it almost has the syncopation of a children’s picture book, even if the story it tells is one of horror: 

The Defendant, DONALD J. TRUMP, was the forty-fifth President of the United States and a candidate for re-election in 2020. 

The Defendant lost the 2020 presidential election.

Despite having lost, the Defendant was determined to remain in power. 

So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. 

These claims were false, and the Defendant knew that they were false.

But the Defendant repeated and widely disseminated them anyway — to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.

The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. 

He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. 

Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. 

His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful. 

Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election result.

What follows that in the indictment is a story we all saw unfold in real time, laid bare in a double-spaced legal document. There is also a lot to read between the lines. Even former Trump Attorney General Bill Barr, who enabled many of Trump’s worst instincts and misled the American public about Trump’s fitness for office, told CNN he thinks prosecutors have more evidence than what they have shared thus far. He called the indictment “very spare” and added, “I think there’s a lot more to come and I think they have a lot more evidence as to President Trump’s state of mind.” 

Be that as it may, these 45 pages comprise one of the most consequential pieces of writing in American history. It does not have the earth-shattering rhetoric of our Declaration of Independence, the poetry of Lincoln’s “Gettysburg Address” or the urgent morality of Dr. Martin Luther King’s “Letter from Birmingham Jail.” But it is a clear statement at one of the most pivotal intersections in our nation’s narrative; that autocracy and the fomenting of political violence to subvert the peaceful transfer of presidential power is not only anathema to our values — it is illegal. 

History is riddled with “what ifs.” We are left to ponder what the worst outcomes might have been if things had turned out differently, from our own revolution, to World War II, to the Cuban Missile Crisis. January 6 should be added to that list. 

As bad as it was, it could have been (and came close to being) much worse. And that reality bursts forth from this indictment. According to what is written in the indictment, violence was expected by Trump and his co-conspirators. They understood that their schemes to steal an election would almost certainly plunge the nation into chaos. That was the plan. 

In the end, their plot was unsuccessful, but the danger has not receded. Trump is running for president. At this point he is the favorite, by far, to win the Republican nomination. And that means he could win reelection. That result would likely usher in chaos, greater and deeper division than even what we now have. It could very well end the country as we know it. 

That may sound to some to be hyperbole, but by any reasonable analysis, that is a lesson to be learned from this indictment. And that is what Jack Smith hopes to prove in federal court. One can make a credible argument that this is one of (if not THE) most consequential criminal cases in American history. 

A former and potentially future president is accused of trying to destroy the United States. His own vice president is a key witness. You couldn’t make this up. But this is the reality of what we face. Democracy is always fragile and must be fought for to survive. A free people must constantly be on alert and working to preserve their liberty.

At the birth of our nation, Benjamin Franklin is said to have quipped that the Framers had produced “a republic, if you can keep it.” Lincoln, in his Gettysburg Address, spoke of how the Civil War was a “test” of whether a nation “conceived in Liberty, and dedicated to the proposition that all men are created equal ... can long endure.” We, the people, can take nothing for granted.

This concept of the United States of America, still relatively new in human history, is impossible to maintain without the continual peaceful transfer of power at the top. That is what this new indictment is about. 

In his first inaugural address as governor of California in 1967, Ronald Reagan spoke eloquently of this truth: 

“We are participating in the orderly transfer of administrative authority by direction of the people. And this is the simple magic of the commonplace routine, which makes it a near miracle to many of the world’s inhabitants. This continuing fact that the people, by democratic process, can delegate power, and yet retain the custody of it. Perhaps you and I have lived too long with this miracle to properly be appreciative. Freedom is a fragile thing and it's never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation.”

This is what is at stake for the generations alive today. It is an epic battle that will now take place in federal court as well as at the ballot box. 

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