Surprising What Is—and Isn’t—in 3rd Trump Indictment, Legal Expert Says
Virginia Allen /
Former President Donald Trump on Tuesday was indicted for a third time, and “it’s striking that there’s really nothing new in the indictment,” Steven Bradbury says.
The latest indictment by special counsel Jack Smith is “all based on what we already knew publicly from the work of the Jan. 6 committee and from all the news coverage,” Bradbury said, adding that the new indictment is “hollow in the sense of no new allegations.”
Bradbury, a distinguished fellow in the executive vice president’s office at The Heritage Foundation, joins “The Daily Signal Podcast” ahead of Trump’s arraignment in federal court in Washington, D.C., on Thursday to explain what charges Trump is facing. (The Daily Signal is the news outlet of The Heritage Foundation.)
Bradbury, who served as the Department of Transportation’s chief legal counsel in the Trump administration, also explains what the indictment says about the Biden administration’s Department of Justice.
Watch the interview or read the lightly edited transcript below:
Virginia Allen: Why was former President [Donald] Trump indicted again and what charges is he facing? Heritage Foundation Distinguished Fellow Steve Bradbury joins us now to answer those questions. Thank you so much, Mr. Bradbury, for being with us today.
Steve Bradbury: Thank you, Virginia. Good to be here.
Allen: This is the third indictment that former President Donald Trump is facing. Who has brought this indictment against Trump?
Bradbury: Special counsel Jack Smith. He’s the same special counsel who brought the indictment in Florida for the Mar-a-Lago documents.
He was appointed to this position by Attorney General Merrick Garland. And Justice Department has procedures for appointments of special counsels in cases where there may be a conflict of interest with the current administration in power. And because this involves the leading candidate to take the job of the current president in power, Merrick Garland went through the motions of appointing him as special counsel.
Allen: Let’s talk about the specific charges within this indictment. The indictment accuses Trump of conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. Can you explain these charges?
Bradbury: Yes. I think Jack Smith here in this indictment has essentially brought the case that was built by the Jan. 6 committee. And it’s striking that there’s really nothing new in the indictment. It’s all based on what we already knew publicly from the work of the Jan. 6 committee and from all the news coverage.
So in that sense, it’s strikingly hollow in the sense of no new allegations. And really the big things that are missing are charges like seditious conspiracy or conspiracy to foment insurrections.
We’ve heard a lot of talk about insurrection. We’ve heard a lot of talk about the violent break-in of the Capitol by the Proud Boys and the Oath Keepers. None of that is directly linked in this indictment to Donald Trump. So there’s no claim. There’s no charge that he worked with the Proud Boys or the Oath Keepers to foment a violent break-in of the Capitol or that he put that riot together or he led it or anything like that. So I think that’s a very striking omission.
Instead, what the complaint or the indictment is built on is the statements that Donald Trump made, the phone calls, the cajoling, the efforts to work with his attorneys and to badger and press state officials to take another look at the election based on his belief that there was fraud in the election in various states. His work with his subordinate officials at the Justice Department to try to press those same claims and his effort to press and cajole his own vice president.
So all of this effort to express his claim, which you may feel is baseless, he may have been relying on bad lawyering to make some of these arguments. The indictment says he had reason to know that these claims about fraud were false. And so, on that basis, repeatedly, the indictment says, “Knowing that this was false, he made these claims.”
Well, I think you know what the indictment leaves out is that President Trump was undoubtedly hearing from many other people who were telling him that there was fraud in the election. And whether that was substantiated or not, he probably believed it. He, to this day, continues to claim there was fraud.
So what the indictment alleges is, No. 1, that by spreading these lies, he was attempting to defraud the government, including state governments that run the election.
No. 2, by pressing officials around him to take action, he was attempting to obstruct the Jan. 6 electoral vote count.
And then No. 3, the most shocking charge here, which it’s pretty prurient, I would say, of Jack Smith to include this charge, is a charge under the Ku Klux Klan Act of 1870, one of the Reconstruction Congress acts from right after the Civil War.
This is one of the statutes Congress passed to go after the Ku Klux Klan. It makes it a crime to go under disguise at night to conspire, to deny people their rights through violence and other means. You get the picture.
What Jack Smith is alleging is that Donald Trump’s claims that there was fraud in the election and challenges about the integrity of the election and his efforts to press state officials and federal officials to take action was a conspiracy to deny people the right to vote under the Ku Klux Klan Act of 1870.
A really stretch, a real sort of shocking charge that I think reflects an effort to pressure anyone who raises questions about election integrity, about voter ID laws. It kind of echoes what we heard in the congressional debates from last year, the year before, about tarring anyone as an enemy of voting rights who wanted to press voter ID laws or election integrity laws around the country. And this is kind of in that spirit to bring a charge like this under the Ku Klux Klan Act.
Allen: What do you make of the accusations that special counsel Jack Smith has chosen to include and not include within this indictment? How do you think Jack Smith is handling this and what does this say about the Department of Justice?
Bradbury: Well, there’s a lot of people who think this is an example of the weaponization of the justice system. The timing is quite questionable given what was just happening with the plea hearing for the president’s son, Hunter Biden, in Delaware. And this comes right on the heels of that.
But this indictment is really, I can’t emphasize enough, it’s based on expressions of opinion by President Trump and candidate Trump, efforts to work with others to address what he viewed as his grievance. That is the integrity or lack of integrity of the election, his claims about fraud, which, again, may not have been substantiated.
He didn’t seem to have evidence for it. All of his legal challenges were failing. So he was going to the state legislatures to try to get relief. These are expressions and actions that are protected by the First Amendment.
So you have the First Amendment right to raise questions about the integrity of elections or claim there was fraud in elections, even if you don’t have evidence for that, you have the First Amendment right to do that.
In fact, the prosecutor in this indictment makes that clear right up front. But then many of the allegations in the indictment are just that, they are expressions of opinion, they are charges that there was fraud, etc.
You also have a right to press government officials for relief if you feel you have a grievance, that’s called petitioning the government for a redress of grievances. It’s another fundamental right under the First Amendment.
And Donald Trump is alleged to have conspired with others to try to overturn the election. Well, that’s another way of saying he was working in a concerted way with other people to try to petition state governments and federal governments to get a redress of what he believed was a grievance, which was the fraudulent election, as he saw it.
So a lot of this turns on whether he really did believe what he was saying, that there were grounds to question the integrity of the election. And a lot of it also turns on activity that I think is at least arguably protected by the First Amendment.
Another thing that the indictment gets into is, the president at the time, he was remembered, the president of the United States in the White House in the Oval Office, he was trying to pressure his subordinates at the Justice Department, senior officials at the Justice Department to take action. He was also trying to pressure his own vice president to take action in the electoral count on Jan. 6.
Both of those things are exercises of his presidential power to supervise subordinate officers in the executive branch.
And it’s a real stretch to think that efforts to do that, as misguided as they may have been, and again, potentially lacking factual basis, it’s a real stretch to say that that’s a conspiracy, that’s a crime for the President of the United States to badger his own Justice Department officials, to push his own vice president to take actions, to say that’s a crime.
I think there are a lot of legal issues that this indictment raises and that’s why I think that and the absence of any new information, new facts being revealed by this indictment, raise a lot of suspicion that this is political in nature.
I’m thinking a lot of people are going to question whether this is an effort to affect next year’s election by attempting to tar the leading candidate as a potential criminal.
Allen: And Trump’s campaign is already making that argument. That’s what they’re saying is happening here. So, because I know so many Americans do view this as a weaponization of the Justice Department and a misuse of power, how do you think lawmakers should be responding in this situation?
Bradbury: I think there will be a lot of calls for oversight and questions raised, letters sent. But the fact that the indictment has now been unsealed, charges are pending before Federal District Judge in D.C. Tanya Chutkan, the Justice Department and the special counsel, no doubt about it, will put up a wall to all oversight efforts in by saying, “This is an ongoing law enforcement matter. It’s now a criminal case pending before a judge.”
So traditionally, that’s a strong argument against responding to … oversight requests from Congress that get into the ins and outs of motivations for a criminal case, the thinking of the prosecutor, the evidence, etc. I think that there’s going to be very limited avenue, I think, for Congress to look behind the curtain there.
Allen: Interesting. On Thursday, former President Trump is expected to appear in federal court in D.C. Walk us through what that entails. What does this arraignment look like?
Bradbury: Well, it’s just a very preliminary proceeding, the arraignment.
So, presumably, he’ll appear in person. The judge will make him aware of the charges and presumably he’ll be asked to give a plea and he’ll, in all likelihood, plead not guilty.
There may be some discussion between the judge and the attorneys on both sides for the prosecution and for the defense about preliminary matters and potentially some limited discussion about a briefing schedule for any preliminary motions that could be made. And I think this case raises a lot of potential questions that could be addressed through preliminary motions by the defense.
Allen: You mentioned timing a moment ago, and it is interesting looking at the timing of when this indictment came down, that it comes shortly after the Hunter Biden plea deal was rejected by a judge, and just one day after Hunter Biden’s former business partner, Devon Archer, was interviewed by a House committee. Is this timing intentional?
Bradbury: I think we have to assume it’s intentional in the sense that it was up to Jack Smith when to drop this shoe.
The indictment itself is not complicated, as I said before, doesn’t contain any new revelations, … not a lot of dense information in it. It’s really a recitation of many of the facts that the Jan. 6 committee had already elicited.
And so, in that sense, this little package of an indictment could have been brought almost at any time, really. And so he had it ready to go and it was his judgment. This was an opportune time.
Now, he may say he’s going to push for a jury trial to be completed in advance of the election. I think, as with the documents case in Florida, highly unlikely, in my view, that it’s actually going to get to a jury trial before November of 2024. Again, because there are a host of preliminary legal issues that could be raised by the defense here—the First Amendment ones I talked about, the president’s immunity for his own supervision of the executive branch, his own official actions in office. They’re challenging things he said, things he did, meetings he had with his own subordinates.
So there will be questions of privilege, questions of immunity, questions of First Amendment rights that will be raised, and a number of other issues that various legal folks, legal commentators have suggested might be raised.
Allen: I know it’s dangerous business in the legal field to ask for predictions, but any predictions on ultimately where this lands, what the results are of this indictment?
Bradbury: Well, I will go out on a limb and predict that there are some issues here, including those First Amendment issues of free speech and petitioning the government, and also question of when a president might be criminally liable for how he directs and supervises subordinates and what he asks them to do, etc.
Those are some far-reaching questions that I could imagine would wind their way to the Supreme Court and it’s even conceivable that the president and his legal team might attempt to challenge the indictment on its face, raising those legal arguments in some kind of preliminary way and attempt to get those questions up to the Court of Appeals, potentially even the Supreme Court, before there’s a jury trial.
I don’t know if they could be successful at that, but it’s conceivable that that might happen. And you could even get, potentially, a ruling on the sufficiency of this indictment, the availability of these types of charges based on this kind of evidence against a former president by the Supreme Court in advance of a jury trial.
Potentially, though, I think it’s unlikely in advance of the election. I think more likely if it did get to the Supreme Court that you’d ultimately get a ruling on these questions after the election, and one might raise the question of whether that is in fact the tactic or the strategy in mind by the government here.
Allen: Thank you so much, Mr. Bradbury, for your time, for breaking this down for us. We really appreciate it.
Bradbury: My pleasure. Thank you, Virginia.
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