Aug 7, 2023

Trump gets indicted (again).

Trump gets indicted (again).
Photo by History in HD / Unsplash

This time, the 2020 election and January 6 are the focus.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

Today, we're covering the latest Trump indictment — this one in connection to efforts to overturn the 2020 election. Plus, a reader asks about the likelihood Trump really does win the nomination.

Thank you, Philadelphia.

Wow. What can I say? It was an incredible, surreal, moving, beautiful night in Philadelphia. Thank you so much to everyone who came out or sent support from afar. I think it is safe to say the first gathering of the Tangle community was a smashing success, and I am sufficiently thrilled to want to do it again soon. I am more assured than ever that this community is special and growing. Thank you all for coming out — especially those who traveled from across the country to be there! We’ll be sharing audio, video, and images from the night across our channels soon.

Quick hits.

  1. A Russian court sentenced Alexei Navalny, a critic of the Putin regime, to 19 more years in prison on extremism charges. He was already serving a nine-year sentence (The charges). Separately, 11 Chinese and Russian warships conducted naval operations in international waters off the coast of Alaska's Aleutian Islands. (The operations)
  2. The U.S. economy added 187,000 jobs in July, slightly below estimates. The unemployment rate fell to 3.5% from 3.6%, while hourly earnings grew 0.4% month-over-month and 4.4% year-over-year. (The numbers)
  3. The Food and Drug Administration approved the world's first pill designed to treat postpartum depression, which impacts an estimated 1 in 7 new mothers. (The pill)
  4. Oregon ended a ban on drivers pumping their own gas, leaving New Jersey as the only state to prohibit self-serve. (The end)
  5. A Pakistani court sentenced former Prime Minister Imran Khan to three years in jail over allegations he illegally sold gifts that he received while in office (The charges). Separately, Nigerien forces closed off the country's airspace after a deadline passed for Niger's military to restore the country's democratically elected president. (The deadline)

Today's topic.

The latest Trump indictment. On Tuesday, Donald Trump was indicted in a criminal case accusing him of illegal acts during an attempt to change the outcome of the 2020 election. The indictment charges Trump with four crimes:

  • Conspiracy to defraud the United States
  • Conspiracy to obstruct an official government proceeding (tallying the Electoral College vote)
  • Conspiracy against the rights of voters to have their votes properly counted
  • Obstructing and attempting to obstruct an official proceeding

The indictment was filed by special counsel Jack Smith, the same prosecutor who is heading the Mar-a-Lago classified documents case.

“Each of these conspiracies — which built on the widespread mistrust the defendant was creating through pervasive and destabilizing lies about election fraud — targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting and certifying the results of the presidential election,” the indictment says.

While many of the details of Trump's efforts have been previously reported, the 45-page indictment lays out a series of Trump's alleged actions to push claims that the election had been marred by fraud, despite being told by advisors and judges the claims had no merit.

In the indictment, prosecutors concede Trump had a right to challenge election results and even falsely claim fraud. However, the indictment alleges that Trump pushed his own Justice Department to pursue false fraud claims while also pressuring Vice President Mike Pence to overturn the results, even after the allegations of fraud had been thrown out in various federal and state courts. Prosecutors also looked into efforts that included assembling fake electors to send to Congress and fundraising off false claims of election fraud.

These actions, the indictment argues, went well beyond the right to challenge an election and involved throwing out legitimately cast votes.

During the investigation, federal grand jurors heard from witnesses including election officials, close aides, White House lawyers, Vice President Pence, and former chief of staff Mark Meadows. Six other co-conspirators were referenced in the indictment, though they weren't named or charged. However, the descriptions in the document suggest they included Trump lawyers Rudy Giuliani, John Eastman, Sidney Powell, and Kenneth Chesebro, as well as former Justice Department official Jeffrey Clark. Little is known about the sixth conspirator.

This is the second federal criminal case against Trump that has been opened by the Justice Department under President Biden. Trump is also expected to be indicted soon by a grand jury in Georgia, which is investigating him for federal election interference. And he is awaiting trial in New York on charges related to alleged hush money payments he made to a porn star during the 2016 campaign.

Former President Trump called the latest charges a "pathetic attempt" to "interfere with the 2024 election." Many legal experts believe he will mount a defense to these charges on free speech grounds, arguing that the First Amendment protects his political speech and his insistence to government officials and voters that the election was stolen. On Thursday, he appeared in a federal courtroom and pleaded not guilty. The Washington D.C. judge randomly assigned to the case is Tanya S. Chutkan, an Obama appointee who has garnered a reputation for handing down harsh sentences in cases against the January 6 rioters. 

Today, we’re going to explore some arguments about the indictment from the right and left, then my take.

What the right is saying.

  • Many on the right are skeptical that Jack Smith is on solid legal ground, arguing that Trump will be protected by the First Amendment.
  • Some suggest Smith can't prove Trump was knowingly lying when he said the election was stolen, so his actions fall into protected speech.
  • Others contest this notion, arguing there is a clear legal argument that Smith has constructed, even if it is complicated.

In The Wall Street Journal, Kimberley A. Strassel wrote about the unprecedented Jack Smith.

"Be prepared for this new and startlingly elastic precedent to ensnare plenty of others," Strassel said. "That’s the biggest problem with Mr. Smith’s latest broadside against Donald Trump, on top of its untested legal theories and evidence of a Justice Department double standard." As William Barr explained, the “'slippery slope of criminalizing legitimate political activity’” was one reason not to bring the case. "Take Mr. Trump out of the equation and consider more broadly what even the New York Times calls Mr. Smith’s 'novel approach.' A politician can lie to the public, Mr. Smith concedes.

"Yet if that politician is advised by others that his comments are untruthful and nonetheless uses them to justify acts that undermine government 'function,' he is guilty of a conspiracy to defraud the country. Dishonest politicians who act on dubious legal claims? There aren’t enough prisons to hold them all." Al Gore and George W. Bush both filed lawsuits in 2000 with untested legal claims. "Surely both candidates had advisers who told them privately that they may have legitimately lost—and neither publicly conceded an inch until the Supreme Court resolved the matter." Could a sore winner have used this approach to indict the loser for "attempting to thwart the democratic process?"

In American Greatness, Matthew Boose said "of course" this indictment is political.

"Many people are likely under the impression that [Trump] is accused of inciting the January 6 riot, but this is not the case. The word 'insurrection' appears nowhere in the indictment, a striking omission after three years of breathless hysteria about an 'attempted coup.' Instead, Trump is being prosecuted for highly abstract political offenses," Boose said. "Trump is being punished for refusing to recant his belief, a reasonable one, that the political process was fatally corrupted in 2020 and that Biden, consequently, is illegitimate."

"In 2020, Democrats censored a major scandal about Biden and imposed sweeping administrative changes that resulted in an abnormally messy, delayed, and opaque vote count," Boose wrote. "But it’s Trump who caused 'mistrust.' Now, Democrats say it’s crazy to speculate that there is anything political about the prosecution of a presidential candidate in an upcoming national election... The Trump indictment is politics at its purest."

In his newsletter The Popehat Report, Ken White said this case is complicated, but that is not the same as unprecedented.

"The Special Counsel’s theory of the case is broad: he asserts that Donald Trump and co-conspirators engaged in wide-ranging conspiracies to present knowingly false claims and fabricated elector slates to the U.S. Senate when it tabulated and certified votes on January 6, 2021," he wrote. "The conspiracy extended to using false statements to pressure state and federal officials to interfere with the vote count. Jack Smith’s theory is that this course of conduct amounted to defrauding the United States, obstructing and conspiring to obstruct the official Senate proceeding, and using fraud to interfere with the votes of others by attempting to have them fraudulently discarded."

"Nobody’s ever been charged with this set of facts because nobody’s ever attempted to overthrow the government by fraud like this before. In that sense, this is 'unprecedented.' But in other senses, that term is misleading. Each of these federal criminal laws — which are broad and flexible by design — has been used to charge a wide variety of fraud and misconduct," White wrote. "That doesn’t mean that it will be easy for the Special Counsel to prove beyond a reasonable doubt that Donald Trump had the requisite mental state to violate the law. It means that his actions plausibly violate the law."

What the left is saying.

  • Many on the left suggest Trump is guilty, and praise the brilliance of the indictment.
  • Some say it is a thoroughly made case and the law Smith is using to charge Trump can be broadly applied.
  • Others argue that Trump and his accomplices had strong intentions, and we are lucky they were unsuccessful.

In Bloomberg, Noah Feldman said the Trump indictment defends America's battered democracy.

"This is the big one: the first time the Department of Justice has ever indicted a former president for subverting democracy by trying to steal an election he knew he had lost," Feldman said. "Had Trump succeeded, we would no longer be living in a free country, but in a presidential dictatorship." All the charges are "supported by ample evidence that Trump knew he had lost the 2020 vote. He was told so repeatedly by his supporters and subordinates, from the vice president to the Department of Justice to the Director of National Intelligence to the Department of Homeland Security’s cyber security experts to Trump’s own White House lawyers. Republican state legislators as well as state and federal judges also told Trump he had lost."

Lying about the election "is likely protected by the First Amendment under current Supreme Court doctrine. But Trump went further." He "went from state to state trying to browbeat, intimidate, and otherwise cajole officials to reverse the results of the election." Unfortunately, "there is no criminal prohibition specifically targeting an elected official’s effort to use deceit and pressure to overturn an election result. Trump did not (quite) seek the violent overthrow of the US government, at least according to the prosecutors." So prosecutors charged him under three statutes that were "written broadly enough to bar Trump’s conduct, even if they weren’t drafted specifically with the subversion of elections in mind."

In The New York Times, Randall D. Eliason said the prosecution's case looks "thorough and relentless."

"The charging decisions in the indictment reflect smart lawyering by the special counsel Jack Smith and his team. The beauty of this indictment is that it provides three legal frameworks that prosecutors can use to tell the same fulsome story," he wrote. "The lead charge, conspiracy under 18 U.S.C. 371, is a go-to charge for federal prosecutors. Count 1 charges a conspiracy to defraud the United States by obstructing and defeating the lawful counting of votes and certification of the election. Conspiracy is the perfect vehicle for describing a complex criminal scheme and identifying all the actors and everything they did. The conspiracy charge, which makes up most of the indictment, encompasses the tentacles of the scheme to overturn the election results.

"Pressuring state officials to overturn their elections, recruiting slates of fake electors from seven states, trying to corrupt the Justice Department to further the scheme, pressuring Mike Pence to throw out lawful votes and directing the mob to the Capitol on Jan. 6 — all are included as part of a single overarching conspiracy to defraud the United States... Counts 2 and 3 are conspiracy to obstruct an official proceeding and obstruction of a proceeding, under 18 U.S.C. Section 1512. Prosecutors have successfully used this statute to charge hundreds of the Jan. 6 Capitol rioters, including members of the Oath Keepers and Proud Boys, with disrupting the joint congressional proceeding to certify the election results."

In The Guardian, Moira Donegan said the indictment proves Trump might not be bright, but he is dangerous.

"The document unsealed on Tuesday charges only Trump. But it also implicates six co-conspirators," Donegan said. "It was with these accomplices that the special counsel alleges that Donald Trump embarked on a series of frauds, fabrications and cockamamie schemes to reverse the election outcome between November 2020 and early January 2021... They tried to use the justice department to pursue frivolous and fraudulent allegations of election malfeasance; then they tried to conscript state officials into advancing false claims of election fraud; then they tried to send fake electors to congress; finally, they tried to stop congress from certifying the election results on January 6."

"None of these schemes were especially well-thought-out, and none would have been plausible without both a willingness by many Republican officials to lie on Trump’s behalf, and a willingness by many Trump supporters to commit violence... That Trump and his co-conspirators failed in their effort to subvert the election was largely a matter of luck; that they are now being charged in this most significant of Trump’s crimes was not at all guaranteed."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • I've always been skeptical of Trump ever ending up in jail, but the odds of him being forced into a plea deal seem to be growing.
  • The legal arguments here are novel and contestable, but the evidence of Trump's misconduct is clear.
  • Whether or not this case is strong enough for a conviction, the size of Trump's legal trouble now seems insurmountable.

Donald Trump is in a lot of trouble.

Even before we get into the strength of this indictment — and I do think Jack Smith is on solid legal ground — there's something happening here that can't be ignored anymore. The odds of Trump being forced into a plea deal continue to rise.

I thought the writer Scott Galloway (also known as Prof G) made this point well in a recent newsletter. Trump has now been indicted three times and a fourth one from Fulton County, Georgia, is assuredly on the way. In 2021, 94% of defendants charged with federal felonies were convicted, and state and local prosecutors hit high rates as well (the Atlanta office expected to indict Trump has a 90% conviction rate). As Galloway puts it, if those rates were hypothetically reduced, "even when given remarkably favorable, exceptional, odds," Trump still has only a 41% chance of escaping prison time.

So what's the likely outcome? I don't think it is unreasonable to think the end game here is some kind of plea deal with the Justice Department in which Trump agrees to drop out of the race, never run for office again, and serve out probation in exchange for avoiding going to prison.

Now, there are major caveats. The most obvious one is that Trump could reasonably win the 2024 election, overhaul the Justice Department, and watch his charges disappear. As I said last week, I think he has the nomination essentially locked up, legal issues notwithstanding. No candidate leading by 20 points at this point in the race has ever lost the nomination, and Trump is up by over 40 points in most polls.

But it is still possible he beats all the charges in court. The judge in Florida overseeing the Mar-a-Lago case is largely viewed as a wildcard, legal experts seem to disagree about the strength of this latest indictment, the hush money payment case isn't going to end with jail time and the details of the Georgia indictment are as yet unknown.

I've long dismissed the idea of Trump in an orange jumpsuit as a left-wing fantasy, and I still think the chances of him ever spending a day in prison are low. Before January 6, I called it a liberal pipe dream in this very newsletter. But I do think the walls are closing in, and the simple math on the number of charges he could reasonably be found guilty of makes me think a plea deal is increasingly likely.

So, how threatening is this particular case? The indictment is an easy read, and you can spend 20 minutes perusing it yourself (when you're done reading Tangle, of course). I thought Ken White's analysis of the charges (under "What the right is saying") and how they relate to Trump's conduct was the most informative thing I've read about all this. As White put it, Trump's conduct can plausibly fit into the broad ways the government has used these legal codes for obstructing government activity or fraud in the past. But they are broad, and they are contested, and the way courts have ruled on them has varied. Legal gray areas will be prodded, and perhaps that alone is enough for one to believe these charges should have never been brought against a former president. 

I disagree.

"Here’s the point," White said. "There are legal and factual defenses to this indictment, but anyone telling you that it obviously, inarguably violates the law is lying to you."

In other words: These charges are not some violation of Trump's rights, and they alone don’t amount to a political witch hunt. Trump’s own conduct is central to the indictment, and he gave special counsel Jack Smith a lot to work with. Smith has fit Trump's conduct into U.S. legal code. Some have contested Trump will get out on First Amendment grounds, but I don’t think it’s that simple. Smith isn't charging Trump for comments like "mail-in ballots are unreliable," which would be First Amendment protected political speech. He's charging him for specific statements that were falsified by courts, like claiming 10,000 dead people voted, and the way he used those statements to try to pressure government officials into upending the election.

Another thing I've said in the past worth repeating here is that the worst of Trump's conduct related to the 2020 election was, in my opinion, his team's efforts to transmit fraudulent electors from seven different states. Those actions will prove difficult to charge in court, assuming Trump argues that nobody could or should have taken them seriously, but to me they were the closest his team came to actually throwing us into a full-blown constitutional crisis. 

Smith's case, as laid out in the indictment, is reasonable. Trump earned the charges, and they deserve a hearing. But, like all the other indictments, they are only allegations, against which Trump has a right to defend himself. And even if they are all true, in this case, that doesn't mean there is unimpeachable legal ground to charge him on.

It does mean, though, that there's another legal ball in the air for Trump's team to juggle, and another reasonable criminal case being brought against him that very well may end up with a guilty verdict. If this were his only legal trouble, one might find reason to believe he’d wiggle out of it. But it’s not. And I’m less sure than ever that he will.

Your questions, answered.

Q: I do not believe there is any credence to the polls showing Trump as the foregone Republican primary nominee. The reason for this is that millions of people (myself included) NEVER respond to surveys because of the inherent bias in the questions... In fact, I know many voters who intend on voting for either DeSantis or Scott in the primary but these results do not show up in the surveys. So the press concludes that Trump will be the Republican candidate for President. Like millions of others, I do not believe this to be so.

— Kathleen from Scottsdale, Arizona

Tangle: This wasn't really a question, but it felt like a good comment to address today, so we'll flip it: I'll give my take, then ask you a question.

We all tend to be biased toward the views of people we socialize with, and that might be happening for you. For every person you know that doesn't answer polls who is voting for DeSantis or Scott or Ramaswamy or whoever, I think there's going to be at least one other person who is also not answering and is going to vote for Trump.

To support the view that Trump will win the primary, there's convincing polling data. 54% of Republicans prefer Trump over a crowded field, where DeSantis is in second place with 17%. 71% of Republicans said they want Trump to be president again, and 63% said this would be true even if he is found guilty of a crime. As I wrote in today's "My take," no candidate in Trump's position in a modern presidential primary has ever lost.

I can't prove that the polling data isn't missing something or that it doesn't skew the way you think, but I can't prove a negative (which we highlighted in our piece on weak arguments). But what hard proof exists to show that the polling is skewed far enough towards Trump to make a meaningful difference?

Maybe you, or one of our readers, has an answer to this question. Polls can be wrong — they've been wrong before, and they could be again. And I'm always skeptical when I see consensus, so if you think there's something missing from the numbers, I want to know about it. If Trump won't win the primary, what data am I missing?

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

The FBI is investigating a cyberattack on a California-based health care system that forced some locations to close and impacted 16 hospitals and more than 166 outpatient clinics in Connecticut, Pennsylvania, Rhode Island, and Southern California. Details of the security breach have not been released, but several facilities in the network announced they were reverting to paper records, rescheduling appointments, or had to close until further notice. Cyberattacks are becoming a more common and increasing threat to health care systems. The New York Times has the story


  • 30%. The percentage of Americans who believe Biden's victory came thanks to voter fraud, according to a June Monmouth poll.
  • 59%. The percentage of Americans who believe Biden won the 2020 election "fair and square."
  • 93%. The percentage of Democrats who believe Biden won the election “fair and square.”
  • 21%. The percentage of Republicans who believe Biden won “fair and square.”
  • 52%. The percentage of Americans who think Trump should have been charged with a crime for his actions related to January 6 and his efforts to overturn the 2020 election, according to an ABC News poll released Friday.
  • 32%. The percentage of Americans who think Trump should not have been charged with a crime for his actions related to January 6 and his efforts to overturn the 2020 election, according to an ABC News poll released Friday.

The extras.

  • One year ago today we didn't have a newsletter, but I had just written a special edition on moving to Philadelphia.
  • The most clicked link in Thursday's newsletter was our video on Media Bias.
  • Tangle LIVE: 635 readers answered our poll asking if they would attend a Tangle Live event near them, with 75% answering positively. 34% said definitely, 41% said probably, 12% said probably not, 8% said no, and 6% were unsure. When asked what city they would want us to travel to, Boston received the most responses with 25, then New York with 21, followed by Los Angeles with 20. Notably, Lexington, KY, punched above its weight with 4 votes (and nearby Cincinnati received another 4).
  • Nothing to do with politics: The glacial break in Alaska
  • Take the poll. What do you think is the most likely outcome for all of Donald Trump's indictments? Let us know!

Have a nice day.

By taking a “personal approach” to homelessness, Detroit has been able to house more of its homeless veteran population than ever. Using the Built For Zero model, Detroit restructured its system by merging its point of entry for homeless veterans with its point of entry for homeless individuals and families in the community. That switch enabled veterans to access all of the resources available to them, not just veterans’ resources that they don’t always know about or utilize. Since joining the program in 2015, Detroit has reduced veteran homelessness by approximately 60 percent. “When I started with the VA in January 2017, the highest number that we had was 348 homeless veterans, and as of April 2023, we are now down to 104,” says Jennifer Tuzinzky, a social worker at the VA Medical Center in Detroit. Reasons to Be Cheerful has the story.

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