January 14, 2025
Shortly after midnight last night, the Justice Department released special counsel Jack Smith’s final report on former president Donald Trump’s attempt to overturn the results of the 2020 presidential election. The 137-page report concludes that “substantial evidence demonstrates that Mr. Trump…engaged in an unprecedented criminal effort to overturn the legitimate results of the election in order to retain power.”
The report explains the case Smith and his team compiled against Trump. It outlines the ways in which evidence proved Trump broke laws, and it lays out the federal interests served by prosecuting Trump. It explains how the team investigated Trump, interviewing more than 250 people and obtaining the testimony of more than 55 witnesses before a grand jury, and how Justice Department policy governed that investigation. It also explains how Trump’s litigation and the U.S. Supreme Court’s surprising determination that Trump enjoyed immunity from prosecution for breaking laws as part of his official duties dramatically slowed the prosecution.
There is little in the part of the report covering Trump’s behavior that was not already public information. The report explains how Trump lied that he won the 2020 presidential election and continued to lie even when his own appointees and employees told him he had lost. It lays out how he pressured state officials to throw out votes for his opponent, then-president-elect Joe Biden, and how he and his cronies recruited false electors in key states Trump lost to create slates of false electoral votes.
It explains how Trump tried to force Justice Department officials to support his lie and to trick states into rescinding their electoral votes for Biden and how, finally, he pressured his vice president, Mike Pence, to either throw out votes for Biden or send state counts back to the states. When Pence refused, correctly asserting that he had no such power, Trump urged his supporters to attack the U.S. Capitol. He refused to call them off for hours.
Smith explained that the Justice Department concluded that Trump was guilty on four counts, including conspiracy to defraud the United States by trying “to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest”; obstruction and conspiracy to obstruct by creating false evidence; and conspiracy against rights by trying to take away people’s right to vote for president.
The report explains why the Justice Department did not bring charges against Trump for insurrection, noting that such cases are rare and definitions of “insurrection” are unclear, raising concerns that such a charge would endanger the larger case.
The report explained that prosecuting Trump served important national interests. The government has an interest in the integrity of the country’s process for “collecting, counting, and certifying presidential elections.” It cares about “a peaceful and orderly transition of presidential power.” It cares that “every citizen’s vote is counted” and about “protecting public officials and government workers from violence.” Finally, it cares about “the fair and even-handed enforcement of the law.”
While the report contained little new information, what jumped out from its stark recitation of the events of late 2020 and early 2021 was the power of Trump’s lies. There was no evidence that he won the 2020 election; to the contrary, all evidence showed he lost it. Even he didn’t appear to believe he had won. And yet, by the sheer power of repeating the lie that he had won and getting his cronies to repeat it, along with embellishments that were also lies—about suitcases of ballots, and thumb drives, and voting machines, and so on—he induced his followers to try to overthrow a free and fair election and install him in the presidency.
He continued this disinformation after he left office, and then engaged in lawfare, with both him and friendly witnesses slowing down his cases by challenging subpoenas until there were no more avenues to challenge them. And then the U.S. Supreme Court stepped in.
The report calls out the extraordinary July 2024 decision of the U.S. Supreme Court in Trump v. United States declaring that presidents cannot be prosecuted for official acts. “Before this case,” the report reads, “no court had ever found that Presidents are immune from criminal responsibility for their official acts, and no text in the Constitution explicitly confers such criminal immunity on the President.” It continued: “[N]o President whose conduct was investigated (other than Mr. Trump) ever claimed absolute criminal immunity for all official acts.”
The report quoted the dissent of Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, noting that the decision of the Republican-appointed justices “effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding.”
That observation hits hard today, as January 14 is officially Ratification Day, the anniversary of the day in 1784 when members of the Confederation Congress ratified the Treaty of Paris that ended the Revolutionary War and formally recognized the independence of the United States from Great Britain. The colonists had thrown off monarchy and determined to have a government of laws, not of men.
But Trump threw off that bedrock principle with a lie. His success recalls how Confederates who lost the Civil War resurrected their cause by claiming that the lenience of General Ulysses S. Grant of the United States toward officers and soldiers who surrendered at Appomattox Court House in April 1865 showed not the mercy of a victor but rather an understanding that the Confederates’ defense of human slavery was superior to the ideas of those trying to preserve the United States as a land based in the idea that all men were created equal.
When no punishment was forthcoming for those who had tried to destroy the United States, that story of Appomattox became the myth of the Lost Cause, defending the racial hierarchies of the Old South and attacking the federal government that tried to make opportunity and equal rights available for everyone. In response to federal protection of Black rights after 1948, when President Harry Truman desegregated the U.S. military, Confederate symbols and Confederate ideology began their return to the front of American culture, where they fed the reactionary right. The myth of the Lost Cause and Trump’s lie came together in the rioters who carried the Confederate battle flag when they breached the U.S. Capitol on January 6, 2021.
Trump’s nominee for Secretary of Defense, Fox News Channel host Pete Hegseth, is adamant about restoring the names of Confederate generals to U.S. military installations. His confirmation hearing before the Senate Armed Services Committee began today.
The defense secretary oversees about 1.3 million active-duty troops and another 1.4 million in the National Guard and employed in Reserves and civilian positions, as well as a budget of more than $800 billion. Hegseth has none of the usual qualifications of defense secretaries. As Benjamin Wittes of Lawfare pointed out today, he has “never held a policy role…never run anything larger than a company of 200 soldiers…never been elected to anything.”
Hegseth suggested his lack of qualifications was a strength, saying in his opening statement that while “[i]t is true that I don’t have a similar biography to Defense Secretaries of the last 30 years…as President Trump…told me, we’ve repeatedly placed people atop the Pentagon with supposedly ‘the right credentials’...and where has it gotten us? He believes, and I humbly agree, that it’s time to give someone with dust on his boots the helm.”
The “dust on his boots” claim was designed to make Hegseth’s authenticity outweigh his lack of credentials, but former Marine pilot Amy McGrath pointed out that Trump’s defense secretary James Mattis and Biden’s defense secretary Lloyd Austin, both of whom reached the top ranks of the military, each came from the infantry.
Hegseth has settled an accusation of sexual assault, appears to have a history of alcohol abuse, and has been accused of financial mismanagement at two small veterans’ nonprofits. But he appears to embody the sort of strongman ethos Trump craves. Jonathan Chait of The Atlantic did a deep dive into Hegseth’s recent books and concluded that Hegseth “considers himself to be at war with basically everybody to Trump’s left, and it is by no means clear that he means war metaphorically.” Hegseth’s books suggest he thinks that everything that does not support the MAGA worldview is “Marxist,” including voters choosing Democrats at the voting booth. He calls for the “categorical defeat of the Left” and says that without its “utter annihilation,” “America cannot, and will not, survive.”
When Hegseth was in the Army National Guard, a fellow service member who was the unit’s security guard and on an anti-terrorism team flagged Hegseth to their unit’s leadership because one of his tattoos is used by white supremacists. Extremist tattoos are prohibited by army regulations. Hegseth lobbied Trump to intervene in the cases of service members accused of war crimes, and he cheered on Trump’s January 6, 2021, rally. Hegseth has said women do not belong in combat and has been vocal about his opposition to the equity and inclusion measures in the military that he calls “woke.”
Wittes noted after today’s hearing that “[t]he words ‘Russia’ and ‘Ukraine’ barely came up. The words ‘China’ and ‘Taiwan’ made only marginally more conspicuous an appearance. The defense of Europe? One would hardly know such a place as Europe even existed. By contrast, the words ‘lethality,’ ‘woke,’ and ‘DEI’ came up repeatedly. The nominee sparred with members of the committee over the difference between ‘equality’ and ‘equity.’”
Senate Armed Services Committee chair Roger Wicker (R-MS) spoke today in favor of Hegseth, and Republicans initially uncomfortable with the nominee appear to be coming around to supporting him. But Hegseth refused to meet with Democrats on the committee, and they made it clear that they will not make the vote easy for Republicans.
The top Democrat on the committee, Senator Jack Reed (D-RI) said he did not believe Hegseth was qualified for the position. Senator Tammy Duckworth (D-IL) exposed his lack of knowledge about U.S. allies and bluntly told him he was unqualified, later telling MSNBC that Hegseth will be an easy target for adversaries with blackmail material.
Hegseth told the armed services committee that all the negative information about him was part of a “smear campaign,” at the same time that he refused to say he would refuse to shoot peaceful protesters in the legs or refuse an unconstitutional order.
After the release of Jack Smith’s report, Trump posted on his social media channel that regardless of what he had done to the country, voters had exonerated him: “Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide,” he wrote, lying about a victory in which more voters chose someone other than him. “THE VOTERS HAVE SPOKEN!!!”
It’s as if the Confederates’ descendants have captured the government of the United States.
Notes:
https://founders.archives.gov/documents/Adams/06-04-02-0026-0004
https://www.lawfaremedia.org/article/the-situation--the-cult-of-unqualified-authenticity
https://www.theatlantic.com/politics/archive/2024/11/pete-hegseth-books-trump/680744/
https://www.cnn.com/2025/01/13/politics/pete-hegseth-confederate-generals-military-bases/index.html
Bluesky:
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atrupar.com/post/3lfpia6qs422m
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X:
As always thank you for this history, Professor!
Paradoxically, the worse things get, the more optimistic I become. I know things can go south – a miscalculation among these bumbling idiots and the whole human project perishes. But if we survive that and things get very bad . . . well, things are often bad until they are not. There are Black Swan events that can topple regimes. Assad was going to go on forever . . . until he didn’t. The Soviet Union and Eastern Block were nowhere near collapse . . . until they were. Hitler and the Wehrmacht were invincible . . . until they were not.
A wig-maker’s apprentice comes to collect a bill from a British soldier in Boston and we are no longer a British colony. A few bad harvests in France and Louis XVI’s head comes off. A volcanic eruption in the sixth century, and the Arabs soon transform Rome’s and Persia’s empires – and history. Rome’s western Empire was going to be imperium sine fine, until a series of unfortunate events conspired against them between 378 and 407 CE.
You get the picture. Things can change, the unforeseen become the inevitable. A searing assassination. An indiscrete massacre. A charismatic leader who expresses our collective "Enough!"
History says anything is possible. We just lived that with the pandemic. Expect the unexpected. And I hold that just as the Eastern Block was de facto Soviet, until it was not, the US may well be the US, until it is not. I cannot help but wonder how long people in blue states will tolerate seeing their resources handed out to red, without reciprocity and with gross mockery and abuse. And what will the breaking point be and look like ? Perhaps Tuberville and California are just the beginning.
While the Confederacy might for a moment have a stranglehold on our government, hold space for enormous change. Barring nuclear "pique", not even Trump controls history’s tide. He merely rides it with the rest of us.
Some time ago I stood where Hitler stood at the rally ground in Nuremberg. It is now the site of all manner of diversity initiatives and festivals throughout the year. The vision that monster had for Germany was a spring that only coiled against him. A long view, yes, but that is history, is it not? A very long game indeed, and one damn thing after another.
"But Hegseth refused to meet with Democrats on the committee, and they made it clear that they will not make the vote easy for Republicans" - the Democrats AND Republicans must not allow confirmation of such an unqualified unskilled person for one of the most crucial positions in the government!