Today, Explained - Florida man indicted (again) (again)

Episode Date: August 2, 2023

The latest unprecedented is about January 6, but does the American public still care about January 6? This episode was produced by Siona Peterous with help from Hady Mawajdeh, edited by Amina Al-Sadi, fact-checked by Laura Bullard with help from Amanda Lewellyn and Matt Collette, engineered by Michael Raphael and Patrick Boyd, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

Good evening. Jack Smith only spoke for two minutes and 45 seconds last night, but he said a lot. Today, an indictment was unsealed charging Donald J. Trump with conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. The indictment was issued by a grand jury of citizens here in the District of Columbia, and it sets forth the crimes charged in detail. I encourage everyone to read it in full. Today Explained also encourages you to read it,

but we're going to supplement your reading with an episode about the case and how it might land with the American people. In the meantime, I must emphasize that the indictment is only an allegation and that the defendant must be presumed innocent until proven guilty beyond a reasonable doubt in a court of law. Thank you. Thank you. Get groceries delivered across the GTA from Real Canadian Superstore with PC Express.

Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit Superstore.ca to get started. Today is gonna be explained to you. Alan Rosenstein hasn't yet seen Barbie, but he knows a thing or two about the law. For starters, he's a law professor at the University of Minnesota. He's also a senior editor at Lawfare. We reached out to ask him about the former president's latest unprecedented.

I think this is the most serious indictment. First, it's the most serious in terms of the specific charges that are at issue. And also, it's the most serious, and I think this is the most important part, in that it's the first indictment that actually gets at what I think most observers would agree is Trump's most heinous conduct, which is trying to overthrow the 2020 election. And this is part of a much larger prosecutorial effort within the Department of Justice. It did not start with President Trump. How did it start? Well, it started when the incoming Biden administration was faced with hundreds, if not thousands of individuals

who violently and illegally entered the Capitol to disrupt the certification of the Electoral College vote on January 6th, 2021. This has since become the, by far, largest criminal investigation in U.S. history. Over a thousand people have been charged in some way in January 6th. Hundreds have been convicted, many to house arrest, but plenty to jail time. Likely another several hundred will have to go through the system. And so far, the investigation has largely focused on the folks who entered the Capitol, and then with some notable cases with some of the individuals who planned the attack. So the vast majority of these individuals have been charged at least with things like disrupting an official proceeding of Congress, which is to say the Electoral College certification,

as well as unauthorized entry into the Capitol, which is, for obvious reasons, a protected space. Bring him out! Bring out Pence! Bring him out! Bring out Pence! Bring him out! In addition, there are a smaller subset who have been identified as having committed acts of violence against the Capitol Police or who committed specific acts of defacement against federal property. We're still taking metal, sharpened optics, missiles to include bottles and rocks, and hand-thrown chemical-grade fireworks. Those individuals have been charged with those additional crimes. And then most notably, there have been a small group,

largely centered around the Oath Keepers and the Proud Boys, people like Stuart Rhodes, for example, who have been charged with the most serious offenses we've seen yet to date, which is seditious conspiracy. And they've been charged that because of the planning that they engaged in. The founder of the Oath Keepers militia group is headed to prison for more than 18 years. That is the most of any January 6th defendant so far. And what's the batting average the Department of Justice has thus far? It's extremely high. The department has largely prevailed on almost all of its cases, on almost all of the

charges. It's had to fight some legal fights on applying some of the statutes to the facts of January 6th, but it's won those on appeal in the D.C. Circuit. At the same time, it hasn't won all of the charges on all of its cases, including in the most serious ones. So, for example, in the recent prosecution for seditious conspiracy, while the government has taken down the major in getting the sentences that it wanted. So after someone is convicted, the government will propose what it thinks the proper sentence is, but the judge ultimately decides. And in most cases, or in at least many cases, judges, both Republican and Democratic appointee, have actually gone below what the government has recommended. And of course, Jack Smith in his statement yesterday reminded the American people that

the former president is to be presumed innocent until proven guilty. What are the charges that Jack Smith and the Department of Justice are bringing against the former president in this case? So you have a charge under one statute, 18 U.S.C. 1512, and this is around corruptly obstructing an official proceeding. Right here, we're going to walk down to the Capitol. And we're going to cheer on our brave senators and congressmen and women. And we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have

to be strong. The official proceeding here is the congressional electoral college certification, as well as conspiracy to do so, because the indictment goes into a lot of detail about the many, many co-conspirators that the indictment does not name, but it's pretty clear who we're talking about, people like Giuliani and Eastman. So that's one set of charges. Another charge is brought under statute 18 U.S.C. 371, which is the conspiracy to commit fraud against the United States. I hope that our great vice president, our great vice president comes through for us. He's a great guy.

Of course, if he doesn't come through, I won't like him quite as much. And then the last statute, and I think this is in a sense the most interesting and kind of the most important, not necessarily in terms of prosecutorial strategy, but symbolically, is the statute 18 U.S.C. 241. The reason this is so important is the history of it. This statute was originally enacted as part of the Enforcement Act of 1870 during Reconstruction after the Civil War to allow for the federal prosecution of the Ku Klux Klan and others who were trying to prevent

Black Americans at the time from exercising their civil rights through intimidation and violence. Since that time, since the 1870s, this statute has actually been used much more broadly than sort of the original impetus for it. It's frequently been used to prosecute individuals who have tried to interfere with elections, who have tried to stuff ballot boxes, to try to intimidate people from voting. Again, on the theory that one of our rights as Americans is to vote, and in particular, to have our vote counted fairly. And given the allegations that Trump was trying to get states to overturn their state electors based on lies about the election, that he was trying to pressure Mike

Pence, the vice president, to throw out electoral votes during the certification. That's where that charge is being brought under. Look, all I want to do is this. I just want to find 11,780 votes, which is one more than we have, because we won the state. The people of Georgia are angry. The people of the country are angry. And there's nothing wrong with saying that, you know, that you've recalculated. In response to these charges, the former president of the United States said,

why didn't they do this two and a half years ago? Why did they wait so long? Because they wanted to put it right in the middle of my campaign, prosecutorial misconduct. Why did this take so long, Alan? Well, it took so long for a couple of reasons. First, this was part of the largest investigation in US history. And so it just takes time to do this correctly. It also involved a huge amount of investigative work. It's a little ironic for someone like Trump, who has been complaining that he's getting unfair justice and that a problem of justice is being sloppy, to then turn around and complain that they didn't bring what is the most sensitive and high-profile criminal prosecution in American history.

They didn't bring it, you know, three weeks after it happened. Investigations take a lot of time, and in particular, this investigation, which requires interviewing, you know, and getting testimony from Trump's closest associates, also takes a lot of time. Another reason this took two and a half years is because when it became clear that President Biden was going to run for re-election and also that Trump was a candidate for office, the Justice Department did what it should have done, which is to appoint a special counsel. And of course, that delayed it further. Do you think it would have landed better with the American people closer to the insurrection and not as we approach in more than a year, mind you, another presidential election?

Maybe. There did seem to be a very brief moment right after the insurrection, when there seemed to be more general public consensus around just how bad this was and how sort of awful Trump's conduct was. I will say, if I recall correctly, that consensus did not seem to last for more than a few months. And there was just no way that they were going to be able to bring this case that quickly. So to be honest, I'm just skeptical that there's much the Department of Justice can do for the, call it 30% of the American public that is hardcore MAGA, hardcore Trump supporters. And I think, you know, back to an earlier point about the Department of Justice treating this like any other criminal case, there's something to be said for the Department of Justice not

trying to game out the politics of this. Because once you go down that road, you start making choices. Those choices themselves get scrutinized. And the best thing you can do, I think, is just to treat the case like any case, bring the case when it's ready. And the complexity of this case meant that it was ready two and a half years after the events took Alan Rosenstein, University of Minnesota, Law. We got to take a Today Explained timeout. Then we're going to explore how this big, historic, unprecedented indictment is landing with the American people two and a half years after January 6th. Thank you. time and put money back in your pocket. Ramp says they give finance teams unprecedented control and insight into company spend. With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month. And now you can get $250 when you join RAMP.

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The election day? No, the election day was back in November. Do you... I don't even know what. Do you know about January 6th? No. So when I say January 6th, that means... Nothing.

I don't know. That's just a day to you. Yeah. Today Explained is back. We are here with Christian Paz, who is a senior politics reporter at Vox.com. Christian, we got big news today, big historic unprecedented news. It's a really big deal in terms of American history. But the question is, is it a really big deal in the hearts and minds of the American people?

And you have thoughts. I do, Heshaan. I think it should absolutely be a big deal objectively, right? This is a federal grand jury. It's looked at evidence presented by federal prosecutors, at least enough evidence to show them that there's reason to believe that the former president of the U.S. attempted to overthrow democracy, overturn a presidential election. But I think we're going to see a predictable pattern. Political news media goes into wall-to-wall coverage mode. Welcome back. We've got major breaking news tonight to discuss Donald Trump now facing

his third criminal indictment, this one accusing him of conspiring to defraud the country while he was president of the United States. Democrats condemn Trump. First of all, let me say none of us take any real pleasure in where we are at this point. But I think we all have to understand that as a nation of laws, even a president or former president is not above the law. Congressional Republicans rushed to defend him. This happens in Pakistan.

This happens in places around the world, in Africa where I've served. I never thought I'd see it happen here in the United States. Right, but... And I just can't underscore how damaging it is. No, I understand that. And then Trump's rivals for the Republican nomination contort themselves into trying to give the most ambiguous, nonspecific defenses of him. The allegations in this indictment fall flat. It is wrong and incorrect and inaccurate to place blame for what happened on January 6th

at the feet of Donald Trump. And then a few days later, everyone just seems to move on. We go back to talking about aliens or, you know, the gerontocracy that leads the country or Barbenheimer. And that's, I think, when we kind of get to this specific third indictment, there's an intersection of two trends that I've noticed, which are that it doesn't seem like the indictments are really changing drastically public opinion. And secondly, the memory of January 6th is changing too. And I think that's where I fear we're seeing two kinds of apathy. Some of the polling that I've looked at shows two kind of conflicting opinions, which are that people think that it's important to have these investigations happen, and also that they might be politically

motivated, and that somehow in the mind of the American people, that's not contradictory. I think it's interesting when you look at specific kinds of Americans, right? You ask a Democrat about January 6th, you ask a Democrat about these investigations into Donald Trump, and they're obviously more likely to support investigations, more likely to disapprove of January 6th specifically. And you ask a Republican and obviously you're going to get almost a mirror image of that. There was an interesting University of Massachusetts Amherst poll that was looking at whether Americans want to move on from that day's event or whether they want to learn more about what happened. And obviously, in the immediate aftermath of January 6th, in that month in 2021, the number of Americans who wanted to learn more about what happened was pretty high.

Since then, that number has been gradually decreasing till we get to the 50% figure, while the number of people who want to move on has been increasing from 44% in 2021 to now 50%. And so that's a pretty significant, you know, shift over the last two years. I mean, it's human nature to want to move on. But do we have polling that speaks to how Americans actually view the events of January 6th and how that might be changing over time? That Amherst poll that I was referring to also tracked over the course of the last two years, two and a half years, the kinds of words that people would use to describe what happened on January 6th. The one that is still used the most is riot. 58% of respondents in this tracking poll in April of 2021 called it that. In December of 2021, on the verge of 2022, that was 55%. So it's dropped a little bit. But the thing that's interesting is the number of folks who would describe this also as a protest, just a simple

protest. That's increased by six points from 43% in 2021 to now nearly half of people who would describe it as a protest. That's interesting because, you know, a war is a war when it happens and typically it continues to be a war. What is it about what happened on January 6th? What is it about an insurrection that can change in the public's eye over time? Part of it is definitely that time goes on. People forget the images. People forget the way that they felt while they were watching this. Another side is that Republicans and the former president have been on a pretty active campaign to try to reclaim that legacy and try to make you think that it's something that it wasn't.

A lot of Republican candidates, whether for Congress or for statewide office, made that a pretty big deal in some of their campaigns last cycle. He betrayed you. David McKinley joined Nancy Pelosi voting for the January 6th anti-Trump witch hunt to attack our president and our values. Obviously, it didn't end up helping them a ton. Whether it hurt them, that's a different question that pollsters haven't really been able to answer. But there is a sense of fatigue that settles in there, too. Time helps to change that memory.

The fact that there are also just other things that Americans care about. Inflation was the big story of 2022, as were abortion rights. And suddenly, those kitchen table issues come back into play and end up just, you know, slowly chipping away at whatever, you know, strong sentiment you might have had, if you were, you know, an average American, not a very partisan Republican or Democrat, because what we do see very clearly from this polling is the most partisan members of parties, you know, are pretty loyal to the description that their party leaders have of what that event was. The larger issue here beyond the insurrection, beyond politics, beyond who becomes our next

president feels like it's that we as Americans can't really agree on the truth. And you write about that in your piece. Right. I refer to this as another example of our post-truth politics. You know, post-truth politics being a fancy term to just suggest that in a democracy, in a society that works, a healthy country, there is fact and that there is fiction, that there is truth and that there is falsity, and that those real conditions should affect the way that we think about the legal system, things kind of matter a little bit less in the political context. One quote that I found particularly insightful in explaining a little bit of this came from a member of Trump's party itself, Wyoming Senator Cynthia Lemus, gave a really interesting observation to a Hill reporter also in the week after Trump reported receiving a target letter from the special counsel. And the quote is, I think it shows that politicians lie

and they know that they're lying. The liar knows that people know he's lying and the people that are being lied to know they're being lied to. And in a way, it really does sum up this post-truth politics, this particular moment in our politics right now where Trump has never made any kind of illusion that he would always tell people the truth. all the evidence that is out there shows something else, proves something that the president has said wrong, or shows that, you know, their own intuition or their own idea of the president being innocent might be wrong, doesn't really matter. They kind of bought into this lie and bought into his message and bought into his persona and will continue to support him. So how do you prosecute a former president for an insurrection that he led in a post-truth era? All of this that I'm talking about in terms of apathy,

people sentiment, wanting to move on, not really caring what is fact and what is fiction, is all operating in the political sphere, whereas the justice system continues to do its work. The institution continues to operate. Dates will be set. Lawyers will be meeting. Defenses will be made. Prosecutors will make their case. And we'll march toward, inevitably, a full-on trial of the former

president. And throughout it all, the institutions are working independently of public opinion, independently of whether I wish, or you wish, or advocates for democracy wish that the American people were up in arms about this. The institutions will continue to operate. Christian Paz, his work is located at Vox.com. Our program today was produced by Siona Petros. We had help from Hadi Mawagdi, Amanda Llewellyn, Laura Bullard, Matthew Collette, Miranda Kennedy, Amina Alsadi, Michael Rayfield, and me. I'm Sean Ramos-Furham, and this is Today Explained. Thank you.