Trump indictment over bid to subvert election pushes US into uncharted waters

The United States is in uncharted waters. A former president will defend himself before a judge, accused of trying to violate the will of the American people in a presidential election. He is also the overwhelming frontrunner in the polls to win the Republican Party nomination to run again as a candidate in the 2024 elections. The hypothesis of a president signing decrees from jail is no longer unimaginable. The latest indictment by Special Counsel Jack Smith against Donald Trump for his attempts to subvert the outcome of the 2020 election is the most serious by far of the three that have been issued against the former president in the last four months.

It is also the one Trump should be most concerned about, because of its scope: constitutional experts consider the indictment the most important in history with regard to safeguarding democracy and the rule of law in a U.S. court. It is also significant due to the personal implications it may have for Trump: not only are six of his close confidants also indicted; the list of potential witnesses in a future trial includes public figures of the highest category, including former vice president Mike Pence, who is also running as a Republican primary candidate for the 2024 presidential elections.

The case strikes at the heart of American democracy and has forced the U.S. political class to look in the mirror and ask how, before the alarmed eyes of the rest of the world, a sitting president could question the country’s electoral practices. That he could allege the result was fraudulent and that others would believe him, to the point that a mob would storm the Capitol at the most sacred moment for that system, as the Legislature was confirming the changeover of presidents. And, above all, how a person suspected of such attacks on the U.S. Constitution could run again in a presidential election, with a considerable chance of victory.

Trump maintains bravado on social networks

In the eye of the storm, Trump continues his bluster on his social network, Truth Social. “Thank you to everyone!!! I have never had so much support on anything before. This unprecedented indictment of a former [highly successful!] president and the leading candidate, by far, in both the Republican Party and the 2024 General Election, has awoken the world to the corruption, scandals and failure that has taken place in the United States for the past three years,” he wrote Wednesday. “America is a nation in decline, but we will make it great again, greater than ever before. I love you all!!!”

However, on Thursday, at 16.00 EST, Trump must appear before Judge Moxila Upadhyaya in a federal court in Washington to answer the four charges against him: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. All of them are directly or indirectly related to the Capitol Hill riot on January 6, 2021, when a mob stormed Congress in an attempt to prevent the formal confirmation of Democrat Joseph Biden’s victory in the 2020 election.

It remains unclear whether Trump will have to appear in person. That is a decision for the court, which since the coronavirus pandemic has on occasion opted to hold hearings via videoconference. That was the case on Tuesday, hours before the indictment against the former president was received.

“It depends on the court, which makes these types of decisions. We are willing to abide by the rules of the court. The judge has issued a subpoena, and he [Trump] will appear either virtually or in person,” the former president’s lawyer John Lauro told CNN on Wednesday.

The latest indictment comes in addition to the two Trump is already is facing. In New York he is accused of falsifying business records in connection with payments to allegedly buy the silence of porn actress Stormy Daniels over an extramarital affair, which Trump denies. And in Miami he must answer to the accusation that he illegally kept classified documents at his Mar-a-Lago residence after leaving the White House. As in those two cases, he is expected to plead not guilty on Thursday to the new charges.

A favorable judge in Miami

The circumstances surrounding these processes, however, could not be more different. The New York case is relatively weak while in Miami Judge Aileen Cannon, a Trump appointee, has been favorable to him in the past. But Judge Tanya Chutkan, appointed by former president Barack Obama, has a reputation for being tough in cases related to the assault on Capitol Hill.

The charges Trump faces in the latest indictment are also far more serious. The 45-page document presented by Smith does not include major revelations: most of its contents were already public knowledge, having been revealed during the course of the investigation carried out by a Congressional committee. But it does include some details that had not come to public light until now, such as the fact that Trump’s Vice President Pence took notes during their conversations. Above all, it paints a devastating picture of the former president’s intentions.

“Despite having been defeated, the defendant was determined to stay in power,” writes the special counsel, who is also responsible for the investigation into the classified papers in Trump’s possession at Mar-a-Lago.

To do so, Trump was assisted by six members of his inner circle. Smith does not reveal their identities, but it is not difficult to deduce most of them: former New York City mayor and Trump’s personal lawyer Rudy Giuliani, who led the effort to keep the former president in the White House, or attorney Sidney Powell, who espoused bizarre theories about the manipulation of electronic voting machines.

Their testimony may prove crucial at trial, as may other that of other witnesses who will undoubtedly be called to testify, among them Pence himself.

The former vice president previously declined to testify in Smith’s investigation against his former boss. But the latest indictment is largely based on his testimony and the notes he took in his conversations with Trump in the days leading up to the assault on the Capitol. After the indictment was made public, Pence noted: “Today’s indictment serves as an important reminder: anyone one who puts himself over the Constitution should never be President of the United States.”

Key in this case will proving that Trump was aware that he had been defeated at the polls and that his claims of alleged fraud were lies. Smith addressed this issue in a statement after the indictment was issued: “As described in the indictment, it was fueled by lies. 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.”

Even today, two and a half years after the assault on Capitol Hill, there are many who back Trump’s theories. Polls point to three in 10 Americans believing there was some kind of rigging involved in the November 2020 election. Trump has never admitted defeat and continues to portray himself as the victim of a vast conspiracy to remove him from power and prevent his return to the White House by all means, most particularly in the courts.

Sign up for our weekly newsletter to get more English-language news coverage from EL PAÍS USA Edition