Thread by @NoahCRothman

The @NRO editors’ view is that Jack Smith’s latest Trump indictment is an overreach that seeks to “criminalize protected political speech” and undermine the rule of law.

I dissent from our editorial.

"January 6 Was a Crime" nationalreview.com/2023/08/januar…

Summarizing some points: Smith’s charges, conspiracy to defraud the gov’t and obstruct it’s proper workings, are distinct from Trump’s 2021 impeachment article on “incitement to insurrection.” This is not a “do-over” of impeachment by Biden’s DOJ.

Is this an overcharge because fraud is understood as “a scheme to swindle victims out of money or tangible property?” Relevant SCOTUS precedents indicate that obstructing or impairing legitimate gov’t proceedings defraud gov’t. That must be reckoned with.

The editorial is skeptical prosecutors can prove Trump didn’t believe his lies. That’s what Smith attempts, and the evidence is compelling that Trump had no rational basis for that belief. Indeed, accusing Pence of being “too honest” implies the subornation of dishonesty.

If Trump was blind, his blindness was willful. That is legally relevant.

And yet, while we must assume Trump's sincerity, we’re expected to have known and acted like they his lies were lies. That’s the basis for claiming fraudulent electors, some of whom were allegedly “tricked” into their circumstances, should have known they were being hoodwinked.

The elbow and wink defense may hold up in court, but I am not comfortable lending it too much credence from our remove.

As Jefferson wrote, “To lose our country by a scrupulous adherence to the written law, would be to lose the law itself.” Trump lied. He suborned lies. He sought to mislead federal agencies. He obstructed the proper workings of gov’t. The result was one of America's darkest days.

As a final point that is not in the piece, I would add something about the conservative disposition I think should be operative here. It is the intellectual and instinctual aversion to mobs and those who would use crowds to attain power.

Conservatism is nothing if not, at base, an intellectual and instinctual hostility to the mob. It must also be a natural aversion to those who would wield the mob and use the law as a weapon to attack the very foundations upon which the law stands.

Sadly, there are a great number of conservatives who have become invested in the idea that this mob was a righteous mob, or that the existence of other, more venal mobs grants them license them to dismiss the significance of the one that engaged in violence in their name.

If we're not standing against that, what are we standing for?