There is a large body of opinion, even in progressive media, that the Department of Justice might be indicting Trump all the way to the White House. These commentators could well be proven right.
There are now two federal indictments and one from the state of New York with the prospect of another from the state of Georgia.
There are rumours that Trump may be indicted under Georgia’s Racketeer Influenced and Corrupt Organisations (RICO) Act. Generally speaking, RICO prosecutions may be brought where two or more “acts of racketeering” are alleged to have occurred, drawn from a list of 27 crimes. These include crimes commonly associated with criminal syndicates – murder, extortion, drug or gun running et cetera etc., committed within a ten-year period.
Georgia has a broader list of offences under its RICO Act to include felonies such as obstruction of justice, computer crime, theft and fraud, allegedly committed within a four-year period.
An indictment arising from a Georgia grand jury relating to attempts to overturn the election result in the Peach state is now probable and may happen within weeks.
The federal indictment handed down on August 1 is the most serious Trump is facing thus far. Trump had famously declared that he would only accept the will of the people if it suited him all the way back in the first of the three presidential debates against the hapless Hillary Clinton in 2016. He had made similar comments through the 2020 campaign.
But to understand how Trump’s blather turned from political mischief making to reality, we need to go back to the night of the 2020 election.
In a rambling speech just after midnight on 4 November, Trump first claimed victory in Texas, North Carolina and Ohio which he had won comfortably. Then he went on.
“It’s also clear that we have won Georgia. We’re up by 2.5% or 117,000 votes with only seven per cent left. They’re never going to catch us. They can’t catch us … We also, if you look and you see Arizona, we have a lot of life in that. But certainly there were a lot of votes out there that we could get because we’re now just coming into what they call Trump territory. I don’t know what you call it. But these were friendly Trump voters. And that could be overturned.”
Arizona counted mail-in or absentee ballots first and Biden’s lead shrunk as in-person votes began to be counted. Weeks later, electoral officials in Maricopa County (in and around Phoenix), conducted a recount at the behest of the Trump camp. No evidence of fraud was found and Biden increased his winning margin by 306 votes.
Georgia counted absentee votes after the in-person votes were counted. On in-person votes alone, Trump led by 23 points but Democrat pre-poll voters exceeded GOP pre-poll voters by 30 per cent.
In swing states like Pennsylvania which counted in-person votes first, Trump led comfortably. I recall looking at the count in Lackawanna County with its major city, Scranton in Pennsylvania, made famous by the US version of The Office where Steve Carell’s workplace hijinx brought amusement for years.
Scranton is also the birthplace of Joe Biden so one presumed he would have fared well there. Late in the night of November 3, Trump led in the county by eight per cent. Biden would go on to win it by the same percentile when mail-in ballots were counted.
That was the story of the election in a nutshell and it points to the gravest error of political judgement Trump made during the campaign in exhorting his supporters to vote in-person on election day.
Trump won the in-person votes even in Deep Blue states. He won Hawaii 79-21 on in-person votes. In Biden’s home state of Delaware, Trump led the in-person vote count albeit narrowly. But across the board and in swing states in particular, the Democrat absentee vote was almost two to one. In Pennsylvania, Democrats pre-polled 76 to the Republican pre-pollers’ 23 per cent.
Trump wasn’t the only one to be befuddled on the night of the election. Political commentators were attempting to divine the results with furrowed brows. The high rate of absentee votes due to the pandemic clouded the result on the night of the election.
But by far the most interesting moment in Trump’s speech that morning occurred seven and a half minutes in as the numbers were starting to shift against him.
“This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election. We did win this election. So our goal now is to ensure the integrity for the good of this nation. This is a very big moment. This is a major fraud in our nation. We want the law to be used in a proper manner. So we’ll be going to the US Supreme Court. We want all voting to stop. We don’t want them to find any ballots at four o’clock in the morning and add them to the list. Okay? It’s a very sad moment. To me this is a very sad moment and we will win this. And as far as I’m concerned, we already have won it.”
That moment marks the genesis of Trump’s delusion – an inability to appreciate the overwhelming number of pre-poll votes cast in swing states of Michigan, Wisconsin, Arizona and Pennsylvania. On the back of pre-poll votes, Georgia flipped blue for the first time since 1992.
Of course, the four felony count indictment goes further than Trump’s denunciation of the count in the wee hours of November 4, 2020.
Item Three of the indictment states, “(Trump) had a right, like every American, to speak publicly about the election and even to claim, falsely, 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, (Trump) did pursue these methods of contesting the election results. His efforts to change the outcome through recounts, audits or legal challenges were uniformly unsuccessful.”
What is alleged in the indictment is a concerted attempt to conspire to illegally overturn the result, including attempting to replace electoral college representatives in swing states with those he believed would act in his interests. That is a matter for the courts. Regardless, I doubt his delusional state of mind will be offered as a defence.
Perhaps the real lesson is that the swing states that went from red to blue and ultimately delivered victory to Joe Biden were won by slim majorities. Biden won Georgia by just a touch more than 11,000 votes with almost five million votes cast. In Pennsylvania, Biden won by 80,000 votes with 6.8 million votes cast. In Arizona, Biden won by 10,000 votes with 3.3 million votes cast. In Wisconsin, Biden won by a margin of less than one per cent. In Michigan it was less than three per cent.
These states are all in play in 2024.
With fifteen months to go before the 2024 presidential election and Trump’s polling remaining high, the prospect of Americans electing a president under indictment or even under conviction is a live possibility.
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