I have written this piece for Slate. It begins:
Forget hush money payments to porn stars hidden as business expenses. Forget showing off classified documents about Iran attack plans to visitors, and then ordering the pool guy to erase the security tapes revealing that he was still holding onto documents that he had promised to return. Forget even corrupt attempts to interfere with election results in Georgia in 2020.
The federal indictment just handed down by Special Counsel Jack Smith is not only the most important indictment by far of former President Donald J. Trump. It is perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any U.S. court against anyone….
One should not underestimate the chances that Donald Trump could be elected President in 2024 against Joe Biden—especially if Biden suffers any kind of health setback in the period up to the election—even if Trump is put on trial and convicted of crimes.
A trial is the best chance to educate the American public, as the January 6 House committee hearings did to some extent, about the actions Trump allegedly took to undermine American democracy and the rule of law. Constant publicity from the trial would give the American people in the middle of the election season a close look at the actions Trump took for his own personal benefit while putting lives and the country at risk. It, of course, also serves the goals of justice and of deterring Trump, or any future likeminded would-be authoritarian, from attempting any similar attack on American democracy ever again….
Trump now has legal two strategies he can pursue in fighting these charges aside from continuing to attack the prosecutions as politically motivated. The first strategy, which he will no doubt pursue, is to run out the clock….
He also will likely assert First Amendment defenses. As the indictment itself notes near the beginning, “the Defendant has a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election that he had won.” But Trump did not just state the false claims; he allegedly used the false claims to engage in a conspiracy to steal the election. There is no First Amendment right to use speech to subvert an election, any more than there is a First Amendment right to use speech to bribe, threaten, or intimidate.