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The Danger of Not Prosecuting Trump's Jan. 6 Conduct: A Conversation with Walter Olson
If he'd take the Nixon deal and leave politics, it would be less necessary to throw the book at him
Aaron Ross Powell: Welcome to Zooming In, a project of The UnPopulist. I'm Aaron Ross Powell. Today, my colleague, Akiva Malamet, and I have our editor's roundtable, and we have a special guest. Walter Olson is a senior fellow at the Cato Institute's Robert A. Levy Center for Constitutional Studies. He is not a lawyer, but we've invited him on anyway, to discuss the recent Trump indictment in Washington, DC.
A transcript of today’s podcast appears below. It has been edited for flow and clarity.
Aaron Ross Powell: I realize we're recording this on August 9th. That indictment only came out a week ago, which has just reminded me of the experience of the Trump years where it felt like six months had gone by and you realize it had only been 36 hours of news. Wally, let me start by asking you, we have been hearing a lot of conflicting things from different corners and ideological perspectives about the contents and legal theories of this particular indictment, which seems to be one of many. To give us maybe a foundation for our conversation today, can you summarize which criminal acts the indictment actually accuses former President Trump of?
Walter Olson: Sure. First, thanks for having me on the show. It cites four federal criminal laws, and this is what Smith and his prosecutors are going to need to prove. Three of them are conspiracy counts, and one of them is not. The four counts are “conspiracy to defraud the United States,” “conspiracy to obstruct an official proceeding,” actual “obstruction of or attempt to obstruct an official proceeding,” and finally, “conspiracy to deprive persons of protected rights,” often known as civil rights.
The first point people may notice is that three of them are conspiracy counts. That's legally significant because when you're charging conspiracy, although you have to prove some additional things, there are some things you don't have to prove, such as that the conspiracy actually succeeded. If a conspiracy aims to do something criminal and there is at least one overt act taken by one of the participants, then it doesn't matter whether you actually, in this case, stole the election or not. It doesn't matter whether the official you tried to corrupt actually agreed to be corrupted.
It doesn't matter whether any document you may have forged was accepted as genuine by the government panel that was looking at it. None of those things need to succeed if you have been conspiring toward a crime. That's part of the significance. One of the objections to the indictment is, "But wait a minute. None of this works, so how can there be a crime?" That's how. Of course, on one of the four counts, namely obstruction or attempt to obstruct, they go beyond conspiracy and say we think we can prove criminality and what was actually done without conspiracy framing.
“If a conspiracy aims to do something criminal and there is at least one overt act taken by one of the participants, then it doesn't matter whether you actually, in this case, stole the election or not. It doesn't matter whether the official you tried to corrupt actually agreed to be corrupted.
It doesn't matter whether any document you may have forged was accepted as genuine by the government panel that was looking at it. None of those things need to succeed if you have been conspiring toward a crime.”
— Walter Olson
Aaron: One of the big objections we've been hearing, and one of the tactics that particularly people on the MAGA Trumpist right have been using is that this indictment represents a direct assault on the First Amendment, that this is criminalizing Trump's God-given right, constitutional right to speak his mind about an election, even if he's wrong about malfeasances in it or the fact that it was illegitimate, or whatever else he and his people have been talking about. It's a problem in that regard. Then it's also a problem in that it requires that he basically knew that his speech was false, that he was lying about this, but that if he actually believed it, then this indictment doesn't work.
Walter: You've outlined two big points, and I'm going to have to take them one at a time because they're both big. The one about “where does First Amendment-protected free speech and criminality begin?” is central and important. I've tried to answer that because many people that I deeply respect and have worked with on First Amendment issues find some merit in that. I don't. But because they do, I want to take that very seriously and try to outline as best I can why it fails. The indictment itself, and it's 45 pages, 45 highly readable pages, so I do urge people to go and actually read it.
The indictment lists a bunch of different speech acts. That can easily throw the reader at first into thinking, oh, wait a minute, each thing they've devoted a paragraph to they consider a criminal offense, which is not how that works. If you've got a criminal offense to bomb a building, and one of the paragraphs is they went out and bought some wires at a hardware store, everyone knows that buying wires at a hardware store is not a criminal offense. It only would become one as part of a wider scheme. That's the first way of understanding why there is so much speech in successive paragraphs describing the different things.
In the absence of that last couple of steps in which they're attempting to, in the prosecutor's view, defraud the United States or obstruct an official proceeding, et cetera, the earlier ones would have no legal effect of criminality whatsoever. The prosecutors agree. Prosecutors throw in some language about the speech and advocacy here is not being considered unlawful. Indeed, we recognize that he has constitutional rights to do those things in isolation when not combined with the others. In that sense, there is broad agreement as to some of this.
The question is always going to be those last couple of steps or those ingredients that change it from being just a line of things that he said to possible offense, how solid are those? What are those? What are his defenses? Now, I want to pause for a moment, people talk about speech. The other part of the First Amendment that plays a big role here and that we need to keep as a separate mental category is the right to petition the government for redress of grievances. We know if we followed these things for a while, but it's one of the reasons why lobbying the government has some constitutional rights.
You can't simply ban it because there is that right to petition for the redress of grievances. Part of the defense of Trump and his advocates on this point is that even things that went on behind the scenes where he was talking to particular officials might get the benefit of that First Amendment protection for trying to get his grievances redressed. Although a president, you could say that he was a candidate who was trying to get his grievances redressed, isn't that protected? The answer is, to some extent, it is protected. Drawing that line is going to be something the courts will be asked to do.
Akiva: Just to jump in here, I think a point of clarification. The case, as I see it, is not about whether Trump has free speech rights. It's about whether, as Walter said, he has a right to use his free speech to then defraud or pressure election officials not to count ballots, and so on. There's ultimately a confusion here about whether the issue is speech or speech in service of another crime. I think the emphasis should be on the fact that it's in service of another crime. I am not a lawyer or a legal expert, but I was curious, Walter, which of the statutes do you think is the most significant or serious in terms of actually calling Trump to account for that sort of attempt?
Walter: I don't think any of the four different bases are obviously weak. Each of them has certain difficulties of proof, and each of them has certain similarities between what the prosecution is doing and earlier cases that have been won by prosecutors. I will say that we may as well jump in and address something that many people find interesting about this, which is that it simultaneously does and doesn't address what people consider the most serious things Trump did. In particular, it doesn't say, in so many words, that he was trying to pull off the equivalent of a coup, although that's how many of us would think of what he was doing.
There is no USC Section such and such saying you can't pull a coup. The Constitution has things to say about that, but you have to show in the absence of an anti-coup law, you have to show that it violated other things. First, no count of “wait a minute, you tried to stage a coup.” Secondly, there is missing, and I'm sure on purpose, counts such as incitement, which many people thought were central to Trump's guilt that day, but which the prosecutors decided, and I think with some good reason, were sufficiently hard to prove, given what I as a libertarian actually applaud in incitement law and sedition law, and so forth. Namely, we make those things super hard to prove. That's just a fact of life. Very few people ever get convicted of incitement or sedition because the definitions are so narrow. What Trump did, you could say is the moral equivalent of incitement or sedition. If you say that I might not, but it's not the legal definition of it necessarily. They stayed away from all those things.
Instead, they stuck with four seemingly technical, although not actually all that technical, areas of federal law where there's a long record in each of the four cases of people being convicted by the sorts of interpretations and legal applications that the prosecution is asking for here.
“Very few people ever get convicted of incitement or sedition because the definitions are so narrow. What Trump did, you could say is the moral equivalent of incitement or sedition. If you say that I might not, but it's not the legal definition of it necessarily. They stayed away from all those things. Instead, they stuck with four seemingly technical, although not actually all that technical, areas of federal law where there's a long record in each of the four cases of people being convicted.’’
—- Walter Olson
Aaron: One of the interesting things about the indictment is it lists, and it doesn't name, although we have subsequently figured out who they all were, a handful of unindicted co-conspirators. I think all of them are, if I remember correctly, all of them are lawyers.
Walter: There's one who's a consultant.
Aaron: A consultant. That's right. He was the one we couldn't figure out for a while but has been now identified. The only person indicted so far is Donald Trump. At least from my social media feeds on the hashtag #resist side of the political spectrum, there's just this absolute glee, there’s memes about him going to prison, and just this exuberance that he's finally going to be got. Because he's the named guy in this, as you said, it's very clear and it appears damning indictment that I agree everyone should read, not just because it's a good explanation, but also because it immediately became one of the most important documents in American history when it was released.
Walter: To address that first point, it was a choice of the prosecutors rather than something inevitable that Trump was the only one named. In a different prosecution, they might have chosen to bring in some of those named or unnamed rather co-conspirators as defendants, but they didn't do so in this case. The best explanation I've seen, it's not officially explained, but the best rationale I've seen is that the prosecutors recognized that if they were naming multiple people, it would be a considerably more complicated case and would take considerably longer. They believe the important part of this case is the part against Trump and that it'll go much faster and with fewer legal complications if they don't name anyone else for now.
Aaron: Does the sorts of people who are the unindicted co-conspirators and were engaging in a lot of this activity provide a potential out for Trump in the sense that he was this longtime delusional guy who was convinced he could never lose anything, so therefore if he does lose, it's because of dishonesty, corruption, and so on? He genuinely believes that the election was stolen from him, and he surrounded himself with lawyers who are telling him not only, yes, it's true that the election was stolen from you, but we can fix it. Here are plans for doing it.
They have all of these prongs that the indictment goes into. Basically, he's not guilty because he wasn't setting out to engage in a criminal conspiracy. He was just listening to what his lawyers were telling him was the right thing to do in the face of the evidence as he understood it. His lawyers might be guilty of criminal conspiracy and defrauding the United States, but he himself was just a dumb stooge taken in by a bunch of corrupt attorneys.
Walter: You've got three defense cards that you've put on the table there, all of which are of some significance. None of which I would regard as an ace card or perhaps we should say a “Trump” card in this case, that will necessarily win. You have, in order, the "I genuinely believed all this craziness card" the "I was doing it on legal advice card", and the "Others were deep enough into the conspiracy that they may have broken the law, but the parts I heard about don't make me a criminal conspirator". He can and probably will try each of those three, starting from the back.
It is a familiar trouble in conspiracy cases that you are not allowed to find them all automatically guilty once you find some criminality. Some of them might not have been deeply enough enmeshed in the conspiracy, and we know that sometimes organized crime bosses get off because they've maintained enough distance as far as provable on-the-record evidence goes. We know—and I don't mean to derogate his character—we know that Trump has spent a lot of time studying the history of organized crime and has modeled some of his office practices as far as not writing things down and so forth on what has been successful in avoiding legal accountability for colorful New York figures of the past. All that aside, the fact is that some prosecutions for conspiracy fail on that basis.
As for the other two, a lot is made of following lawyers' advice. Obviously, in an edge case, “lawyers said it was okay for me to come into the bank with guns drawn and rob them.” People aren't going to believe that. It's clear enough, and the prosecution went to some trouble to establish that Trump was shopping around for favorable advice. Although there were some credentials there on the part of people like Eastman, it was extremely out there, adventuresome legal advice. Trump was simultaneously getting lots of advice from people like his own White House counsel and Secretary Bill Barr of the Justice Department, his own appointees, elite lawyers who were telling him flatly that he couldn't do this or that. No, that's not a get-out-of-jail card free, it's something that they might use to try to sway a jury in their direction. As for the issue of state of mind, we forget sometimes that courts constantly assess state of mind. It is an element of lots of crimes as well as lots of civil offenses that are raised in lawsuits.
Happens all the time that people have to figure out whether the management of some chemical company knew that some process was hazardous, how it was hazardous, what the consequences might be. The law establishes those things all the time. Now sometimes, especially in criminal law, where it has to be beyond a reasonable doubt, enough reasonable doubt is left that a defendant can get off. I'm not dismissing that. At the same time, every day people get convicted by that same beyond-a-reasonable-doubt standard over states of mind.
Again, the indictment includes a bunch of material suggesting that in private or in even in some public settings Trump may have slipped and admitted knowledge that he had in fact lost the election. There are other things that are in there that are meant to build toward that case. Again, the fact that the prosecutors have to make that case doesn't mean they're being asked to do something that prosecutors don't do all the time.
I would add, by the way, that there are some counts in here that don't require the state of mind condition that people talk about. A bunch of them do, but at the same time, if you have engaged in a conspiracy to enter false government documents, forged documents, you might say to be unsympathetic, then state of mind doesn't get you off. You're just not allowed to file forged documents whatever your state of mind.
Akiva: I think beyond the strict legal components of this is are the social-political stuff, and I'm not nearly as legally informed as Walter is, and this is something I think I could speak to a little bit more, but there's been a lot of debate, and Walter actually has a great piece about this in The UnPopulist about a year ago about whether this is the kind of thing, whether we should be indicting presidents, we should be indicting Trump, and so on at all. Does this speak to something about our institutional health? Ordinarily, I would say that this is bad for society.
It creates a certain kind of social division and polarization that's unnecessary, but certainly the degree of the crimes are so intensive that I agree with Walter's interpretation in The UnPopulist that it's very much worth holding the president to account and there's very important basic rules of procedure, the most fundamental pieces of a democratic society, which is the peaceful transfer of power were threatened over the course of Trump's challenges to the election in ways that are quite serious and in ways that perhaps have not been paralleled in earlier American history in terms of a president's challenge to the basic structures of democratic society.
“It's very much worth holding the president to account and there's very important basic rules of procedure, the most fundamental pieces of a democratic society, which is the peaceful transfer of power were threatened over the course of Trump's challenges to the election in ways that are quite serious and in ways that perhaps have not been paralleled in earlier American history.”
— Akiva Malamet
I don't think even something like Nixon or Watergate parallels with trying to basically overturn the results of an election to the same extent. I think on an institutional health basis, this is an extremely important move. There is concern from the perspective of polarization, about whether this feeds polarization, whether this creates more people who are alienated from the system, who distrust the institutions, and so on, because they believe in Trump. Trump becomes their bellwether for whether they're being listened to, about whether the institutions are accountable.
I think these are people for whom the institutions were always unaccountable, for whom Trump was just a confirmation of beliefs they already had. Prosecuting Trump actually makes very little difference in terms of whether their perception of our political institutions' accountability is there. I think, to some extent, what you have is a reconfirmation of everyone's biases rather than any kind of additional polarization or any kind of additional breakdown in social trust.
The real problem is something much deeper, which has to do with the larger sense of social trust in society, and that can't be resolved through any kind of legal decision. The court's job is to hold people to account, the court's job is not to evaluate whether this will improve some of the social and civic health of society overall. I just want to emphasize the importance, I think, of disregarding the larger social and civic implications, and focusing on making sure that institutions hold people to account.
Walter: I would add that, in considering some of the wider social dangers such as, let's say, it were predictable that prosecuting Trump would lead to rioting in the streets, I would say that's a separate calculation for prosecutors and for judges. Judges, I truly believe need to focus on what the law requires and not take into account some of the questions of social qualification. Their job is to rule whether the law has been violated and what the proper penalty for that is. Prosecutors, I do think are entitled to take some of those things into account or, were they precedent, deciding whether or not to exercise power of pardon, then questions of polarization might be relevant there.
If I could, I'd like to go back to a year ago when I wrote that piece and say a little more about my rationale, because I came to it somewhat reluctantly. I think that there are arguments of very considerable strength for the American tradition of not prosecuting former administrations. That goes for presidents, but it also goes in general for if there was miscellaneous misconduct in an administration that has just been voted out of office, the approach of most American administrations is don't be super strict. Go after perhaps very egregious stuff that has agreed to be very egregious, but don't become a Javert or whatever.
I think that was an appropriate and healthy tradition for us to have partly because there is this obvious tit-for-tat danger that can happen, in which erring on the side of being stricter means that karma comes around, and next time the White House changes party, you've given permission for the same thing or worse to happen. Beyond that, people who occupy the White House also occupy a web of legal obligations, some of which are hard to understand, some of which are added every couple of years by Congress. They can sometimes simply follow up and break the law.
Which is why, again, in Trump's case, the factors that I identify as arguing for lenience toward previous administrations just blatantly aren't there. I should say, by the way, parenthetically, that when I wrote this piece, much of the pushback I got was from people saying, "What an awful person you are, Mr. Olson, to ever think that there should be a presumption against prosecuting former officials. You're an elitist or you want there to be one standard of law for the powerful and whatnot." A lot of people just tuned me out without getting to the second half of the piece.
Even though I came to the whole issue with that set of presumptions, Trump's conduct and the current situation overcame those presumptions, partly because he is so very unrepentant, partly because the acts, as you said, Akiva, are so peculiarly dangerous in that they affect the succession of power, something that we simply can't afford to allow to be endangered, partly because he remains in public life, publicly announcing basically on engraved cards that he intends to do the same stuff again should he get back in.
The final point that I make in that piece a year ago is that I'm very understanding of the law accepting imperfect outcomes in order to get social peace. I could go on and on about how litigation could only be understood as a way of accepting imperfect compromises, because otherwise, people would carry on grudges for generations. If you're going to sacrifice perfect justice for social peace, you need to get the social peace. Trump has not taken the Nixon deal.
Nixon dealt better outcomes than he probably deserved in the Gerald Ford pardon, but his half of it was that he then seemed to resolve from his actions never to be a divisive force in American life again, to serve as some elder statesman, handing down pronouncements that never particularly riled anyone up against the other officials, but just gave what wisdom he could from his experience. Trump so obviously isn't giving us the social peace, so we can't count that on one side of the ledger as an advantage.
“I'm very understanding of the law accepting imperfect outcomes in order to get social peace. I could go on and on about how litigation could only be understood as a way of accepting imperfect compromises, because otherwise people would carry on grudges for generations. If you're going to sacrifice perfect justice for social peace, you need to get the social peace. Trump has not taken the Nixon deal.”
— Walter Olson
Akiva: I very much agree with what Walter said, and I just think it's important to reiterate how divisive a figure Trump is, how unique and unusual he is for American history. I have an agnosticism about prosecuting officials because like some of Walter's critics, I have some concern about holding people to account, but as Walter said, I think there's also a concern about political gamesmanship and about subsequent administrations prosecuting the one that came before them. Then the one that comes after them, prosecutes them, and there's a snowball effect there, so I'm a little bit back and forth on this question.
I do think it's important to emphasize, as Walter said, that the degree to which Trump's entire political program is based on undermining American institutions, both in terms of the undermining of political power, but even when he was in office, the idea that the general rules of the game and social norms that democracy abides by, certainly the rules of civility, but also rules of collecting power in the executive and so on are all things that Trump pushed against and tried to fundamentally devolve the balance of power so that he could have more and more executive discretionary power.
These are all things that I find quite worrisome and think we should take seriously, and really the previous kinds of incidents pale in comparison. Those were all things to take into account. Again, as I really appreciate what Walter said, you better make sure that you have civil peace if you're going to avoid prosecution for this or avoid legal consequences for the sake of that civil peace. As I said, I think the state of affairs in the country, a lot of polarization, it's not like Trump is some sort of fueler of that per se. Trump is a bellwether for the state of the country to begin with.
Now, he may have his own personal charisma, he has his own personal ability to channel that state of alienation, but the alienation there exists independently of Trump. Unless we were to say that Trump is the unique sine qua non reason for all this political upheaval, then I would be inclined—unless we were to declare that he was the main reason for all of this, about which I'm somewhat skeptical, then we should have reasons to be following the law.
Walter: Thank you for pointing out that Trump is not causing all these problems all by himself. One of the things that The UnPopulist as a publication has been particularly valuable on is reminding us that some of the things that we associate with Trump are going on in many other countries around the world. Often countries with considerable tradition of democracy, rule of law, classical liberal values, and that therefore part of Trumpism reflects something that you can see in countries as different as Sweden and India, and so forth.
Some of these movements in some of these countries have resulted in criminal charges, and others, they seem to have stayed within the letter of the law, even as they advocate things that the three of us may find very objectionable. I think that has to be part of the overall answer, is that these movements are legal so long as they do not violate the law. When they do violate the law, most civilized countries recognize that the legal system has to respond.
Aaron: I think this also gets to a fundamental difference with Trumpism and the Trump administration, and a lot of Trump's defenders in general. The movement that he represents. That is the executive branch has lied to the American public for as long as we've had an executive branch. Presidents lie all the time, agencies lie all the time. None of that is new, although it's something that I think even to this day, is acknowledged less than it ought to be. There was a real difference was that basically all of the arguments that Trump advances, that the people close to him advanced, throughout his administration were basically offered in bad faith.
They had the appearance of being arguments, but they were really just bullshitting in order to advance this underlying drive to power and so on. This is a characteristic. I have long argued that Trumpism and Trump himself represented, at the very least, a proto-fascist movement within American politics and this is a characteristic of fascist movements going back as long as we have them, is that it's not, as my friend Matt McManus has referred to it, it's a postmodern conservatism. It's not about “we have a set of core principles and truths that we're arguing for.” It's more just we're throwing things out there in order to pretend to engage in arguments so that we can get people to go along with us. It seems the American elites, American government, journalists, and so on, analysts had a hard time grasping this characteristic of the Trump administration and Trumpism, and so there was this constant effort to be like oh, this isn't really all that different from the way things have been before. They're not really dissembling, they're not obfuscating, they're not lying all the time. They're not bullshitting.
“There was a real difference was that basically all of the arguments that Trump advances, that the people close to him advanced, throughout his administration were basically offered in bad faith.
They had the appearance of being arguments, but they were really just bullshitting in order to advance this underlying drive to power.”
— Aaron Ross Powell
They're just, it's policy differences and so on. I think we're continuing to see that in the response like oh, he actually believed it, or, oh, they had views about this. This seems to be why it is necessary. I think one of the big reasons it's necessary to prosecute this is that if we don't prosecute Trump in this regard, and if he's not convicted for this or one of his many, many other crimes that he's been charged with, it's going to reinforce the workability of that kind of postmodern conservative approach. It's going to encourage people to double down on it.
It's going to say that the institutional protections against these kinds of movements and these kinds of power grabs don't actually function. To some extent, I think the argument against not prosecuting him on the grounds that it's going to be decisive, it's going to be polarizing, is exactly that. As Akiva said, Trump's not really driving it. They don't really care about the contents of the legal arguments.
They don't really care about the principle of, as you said, we don't want this tit-for-tat of every administration prosecutes the one before. They don't really care about those things. This is just another way for them to grab and maintain power, and I think we need as a country to come down really hard on that in order to demonstrate that that strategy just can't function as a way to subvert American democracy.
Walter: Let me respond to a couple of points that you made because they're very interesting. First, as far as the tendency of what some would call postmodern and others call fascist or fascist-adjacent movements to have a different attitude toward truth. I think that is correct and very interesting. Part of what we've seen people dredge up in the last few years is the history of Mussolini in Italy or French fascist movement of the 1930s, and how their critics sound like Trump's opponents saying, wait a minute, they are willing to completely invent things and yet taking a joking tone.
That joking tone and the willingness to completely invent things are related on some level and are yet not necessarily the case for right-wing revanchist populist movements. If you look at, for example, older European nationalisms that had allegiance to the German Kaiser or whatever, you find they might be flagrantly right-wing, but they didn't believe that they had a right to lie. They didn't view it all as somehow joking, or as Steve Bannon so memorably put it, “flood the zone” with BS. That's something unusually modern, and related perhaps to the things we object to in postmodernism.
Inevitably, I'd have to drag it back to law because law has its own attitude toward these concepts. In general, on bad faith, it is two and one at the same time, that bad faith is not illegal in itself, the same way speech is not illegal in itself, but that bad faith can be the trigger for the difference between legality and illegality. My example is if you file for a veteran's benefit, there may be a legal difference between whether you misremembered having a war record, and whether you just simply lied about it. That bad faith can be the difference between committing a serious crime and just getting your application rejected.
The law, every day, as I say, just as it decides on state of mind, it decides on bad faith versus good faith, sometimes it's through the same question, in fact. At the same time, bad faith stops short of putting your hand in the till in some way. The law will not punish. The way I describe it sometimes with respect to this Trump indictment is that they could've come up with coup rationales all they wanted without losing the protection of the First Amendment.
It required that additional sticking their hand into the till of forging the documents, or trying to convince a state official to do something that violated the law, or try to hold up by confusion and misdirection, the constitutionally required counting of electoral votes. It took that additional step to turn it into a criminal conspiracy, so bad faith, I'm afraid, we will always have with us. I hope we don't have as much as today, but we'll always have some bad faith with us.
Aaron: Thank you for listening to Zooming In at The UnPopulist. If you enjoy this show, please take a moment to review us in Apple Podcasts. Also check out ReImagining Liberty, our sister podcast, The UnPopulist, where I explore the emancipatory and cosmopolitan case for radical, social, political, and economic freedom. Zooming In is produced by Landry Ayres and is project of the The UnPopulist.
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