By Kenneth Tiven
On the surface, the final three weeks of the US presidential campaign present a choice of firsts—Kamala Harris, seeking to be a double first—the first female president and the first born to immigrant parents, versus Donald Trump, the first convicted felon seeking the presidency. One political columnist described it as a battle between decency against indecency and respect versus disrespect for the democratic process.
Trump’s concern is to defeat Harris because winning gives him a get-out-of-jail card and immunity for most of the legal problems he faces. Losing at age 78 means pending criminal cases will require his final years to be spent in courtrooms and possibly in prison. America has voters who accept an imperfect democracy versus those who think an autocratic leader will solve all the ills they perceive. The unanswered question is: how will a multi-ethnic democracy operate if headed by a cult leader with hereditary power?
This showdown has been building since Trump lost re-election in November 2020, and then organized an insurrection on January 6, 2021, to stay in power. Since then, his big lie of a stolen election has animated his being, absorbed by his MAGA followers as truthful. Consistent with his leader’s view, Trump’s 2024 vice-presidential running mate JD Vance insisted that Trump left office peacefully. Ignoring the Capitol assault was just one of Vance’s dozen or more falsehoods in his debate with Tim Walz, the Democrat’s choice for vice-president. Despite his limited political experience as a US senator, Vance’s appeal delights Trump, who sees him as a mini-me style politician uttering falsehoods with the confidence of a true believer.
Trump is also the first president to have absolute immunity from prosecution, thanks to an extraordinary US Supreme Court decision regarding evidence of his involvement in the January 6 insurrection. Chief Justice John Roberts wrote the 6-3 decision to provide absolute immunity for all political acts. He left some wiggle room by exempting private acts.
The highest court sent the indictment back to Federal District Judge Tanya Chutkan to assess evidence in that light. Demonstrating the old axiom, when there’s a will, there’s a way, special prosecutor Jack Smith did the judge a big favour by filing a superseding indictment and submitted to the court a document entitled, Government’s Motion For Immunity Definitions. In this 165-page document, Smith uses grand jury testimony to explain everything Trump did to overturn the election in his private capacity as a candidate for election, not part of any presidential duties. Judge Chutkan will most likely accept the new document and then ask the Supreme Court to order a new Trump trial; other Trump federal indictments are a long way from a courtroom, given the due process delays lawyers are allowed in federal procedures.
This refiled indictment qualifies as an October surprise just weeks before an election. The accompanying memo, with names redacted, but not facts, dramatically expands revelations from the 2021-22 special Congressional Committee’s investigation. The current reality for Trump supporters is to disbelieve anything negative about their leader, with social media threatening a civil war if Trump isn’t elected this time.
Among the facts revealed: In the dining room off the Oval Office, Trump watched the insurrection at the Capitol on Fox News. He issued his infamous tweet that Pence “didn’t have the courage to do what should have been done to protect our Country and our Constitution,” which led to rioters chanting: “Hang Mike Pence!” Informed that Pence had to move to a “secure location”, Trump’s reaction was—“So what?”
Harvard Law professor Lawrence Tribe explains that Vice-President Mike Pence’s role in the certification of the election is not political, but ceremonial as president of the Senate. Trump’s behaviour is that of a candidate requesting illegal behaviour from an election official. Trump tells Pence to lose some votes, Pence refuses, and Trump says: “You are too honest,” indicating Trump understood it was illegal.
With decades of political experience, columnist Charles Pierce writes that Pence “might be the most consequential vice-president in American history. If there is a single serious protagonist in Jack Smith’s Big Book Of Trump Crimes, it is the white-haired god-bothering Hoosier (nickname for Indiana state residents). Almost everybody at Pence’s level was up to no good every time they hit speed-dial. My God, the guy wouldn’t even get in the limo because he didn’t want to be hijacked by Trump-loving Secret Service men.” The Smith filing establishes that Trump was fully aware that he had lost the election, at one point telling family members that it didn’t matter whether you won or lost an election. “You still have to fight like hell.”
There was no evidence of voter fraud in the states sufficient to change the election before January’s certification. An official helping overturn the election results wrote: “When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0-32 on our cases.” The special counsel’s document notes Trump lost all 60 of the legal cases filed to overturn election results, many in front of Trump-appointed judges.
The superseding indictment contains evidence that Trump had met before the election with his lawyers and campaign team to discuss options beyond accepting defeat. Constitutional law experts have remarked that almost every page of Smith’s filing contains a legal bombshell.
Trump’s lawyers have three weeks to respond to Smith’s move, but these lawyers want an extension until November 21. His legal team doesn’t want to argue anything until after the election. The Supreme Court’s immunity decision creates a potentially unprecedented process for a criminal trial. At some point, Judge Chutkan may schedule a hearing on the special counsel’s motion because the Supreme Court ruling suggests a mini-trial on the evidence first, with any trial of Trump coming second.
If Trump wins the election, he has said he will order the justice department to dismiss all cases against him. In the three years since the Capitol assault, federal prosecutors have charged more than 1,265 defendants across nearly all 50 states. According to newly released numbers from the US attorney’s office in Washington, more than 460 people have received jail time. Hundreds took guilty plea bargains to avoid trials carrying incarceration penalties. Trump promises he will pardon all of these people whom he calls patriots.
Former Congresswoman Liz Cheney, daughter of an illustrious Republican family, joined Harris this past week to plead with conservative Republicans to abandon Trump as a danger to democracy.
It is smarter, she said, to vote for Harris as president in November. As unusual as this bipartisanship is, even more startling was the number of prominent elected Republicans who joined them. Zero. Numerous people who served in the Republican administrations have announced their dislike of Trump, but elected Republicans fear doing what Cheney did. She put country over party and was not re-elected to the Congress.
Voting patterns are jeopardized in the impending election by the extent of death and destruction in four southern states from Hurricane Helene. A second hurricane is tracking towards Florida and the same southern states, promising more intense rain, flooding, and wind damage. Criticism of the relief efforts levelled against the Federal Emergency Management Agency (FEMA) and state governments dealing with the emergency comes from the Trump campaign. Making a political issue out of the tragedy is in their playbook. Local officials and Republican state governors say FEMA is doing a good job side by side with public and private organizations.
New York Times columnist Frank Bruni lives and teaches at a university in North Carolina. He wrote: “I’ve seen politicking off human tragedy before, but seldom on this scale or with this stench. Donald Trump and many of his MAGA minions have used the historic flooding to drown their followers in self-serving lies… Its purveyors include a Republican member of Congress, one Marjorie Taylor Greene. But it’s not just the likes of Trump and Greene peddling such paranoia. As the fake claims and faked pictures spreading across social media make clear, many thousands if not millions of Americans have chosen fiction over fact—because it serves their political goals, profits them financially or validates their tribal fury.”
—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels