The Volokh Conspiracy
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Retribution, Deterrence, and the Case for Prosecuting Trump for Conspiring to Overturn the 2020 Election
His attempt to stay in power despite losing an election is well worthy of prosecution and punishment, on grounds of retribution and deterrence.
Donald Trump was recently indicted for his efforts to use fraud and coercion to overturn the result of the 2020 election and stay in power despite the fact that he had lost. The four counts in the indictment filed by Special Counsel Jack Smith all arise from various ways in which Trump conspired to nullify the election result through fraud and deception, including by conspiring to replace duly chosen electors with fraudulent ones, and pressuring state and federal officials - including Vice President Mike Pence - to illegally overturn election results.
Reason's Eric Boehm has a helpful summary of the charges:
The first charge is focused on the attempt, allegedly organized within the White House, to have Trump-friendly state lawmakers appoint alternate slates of electors to the Electoral College as part of a scheme that would see Trump named as the winner of states where President Joe Biden received more votes.
The second and third charges are aimed at Trump's (and his allies') behavior on and near January 6, 2021, when Congress was scheduled to certify the election results. That includes the pressure allegedly applied to Vice President Mike Pence, who refused to go along with the Trump-backed plot to discard the electoral votes from some states.
Finally, the third alleged conspiracy includes a civil rights charge that strikes at how Trump's machinations aimed to rob Americans of their right to choose the president.
More specifically, Trump is charged with:
a. A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government, in violation of 18 U.S.C. § 371;
b. A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified ("the certification proceeding"), in violation of 18 U.S.C. § 1512(k);
c. A conspiracy against the right to vote and to have one's vote counted, in violation of 18 U.S.C. § 241.
It is important to recognize that Trump isn't being charged simply because he wrongly claimed he won the election. In and of itself, that is no crime. Rather, he went far beyond that and organized a wide-ranging conspiracy to overturn the result using fraud and deception, and by attempting to enlist state and federal officials to assist him. The indictment goes into the means he and his co-conspirators used, in great detail.
It's worth taking a step back and asking why we punish crimes at all. The most widely accepted reasons are retribution and deterrence. In other words, we seek to punish criminals because they deserve it due to the heinous nature of their deeds, and because it's important to deter others from engaging in similar wrongdoing.
If these are the justifications for punishment, there are many situations where inflicting it is unnecessary or unjust, even if the defendant has violated the law. That may happen if the law in question is itself unjust, or if the violation is insignificant and there is little value to deterring it. Trump's indictment by New York prosecutors earlier this year may well be an example of such a dubious case. The later federal indictment for taking and refusing to return classified documents is a much more defensible prosecution.
Trump's attempt to overturn the 2020 election well deserves punishment from the standpoint of both retribution and deterrence. For the head of state in a democracy, there are few more serious crimes than using fraud to try to stay in power after losing an election. If successful, such action would transform the nation into a despotism, usually a deeply illiberal one to boot. Subversion of the republic by the very person who has a special duty to defend it is obviously deserving of severe retribution, given the extraordinarily serious nature of the crime.
It is also important to deter future presidents and other high-ranking officials from similar misconduct in the future. Here too, there is a strong case for severe punishment, given the enormous magnitude of the harm this kind of crime can cause. Severe punishment is also justified by the need for sanctions great enough to outweigh the potential gains of this kind of criminal activity in the eyes of would-be perpetrators. Becoming dictator for life is a major prize for unscrupulous power-hungry politicians. To outweigh that temptation, we need an appropriately severe punishment, one that will strike fear in the hearts of even the kinds of ruthless risk-takers who too often reach high political office.
Trump's most obvious defense to these charges is that he didn't engage in fraud and deception because he honestly believed he had won the election, and that the Democrats had "stolen" it from him. If so, one could argue he didn't deserve retribution, because he didn't know he was doing anything wrong. And, likewise, there is arguably no point to trying to deter people who don't know they are committing a crime.
But the indictment recounts extensive evidence indicating that Trump in fact knew he had lost. Among other things, it notes numerous occasions when his own advisers, law enforcement officials, and election experts told him there was no fraud anywhere near large enough to change the election result. He also could have learned he lost from the numerous court decisions rejecting his legal challenges to the election results, including some issued by judges he himself had appointed.
In addition, there are instances where Trump himself actually admitted he had lost. For example, the indictment notes an incident in which Trump berated Vice President Pence for being "too honest" after the latter noted there was no legal basis to overturn the results. The report of the January 6 Committee (pg. 20 of the executive summary) recounts how Trump told his chief of staff that "I don't want people to know we lost." That obviously implies Trump himself did know he lost, but was trying to hide that fact from the public.
Even if Trump did manage to delude himself into believing he had actually won the election, his conduct was still culpable. If I steal your valuable ring because I have persuaded myself (despite overwhelming evidence to the contrary) that I am its true owner, I am still guilty of theft. The same logic applies here. Trump had every reason and opportunity to learn he had lost. If instead he chose to indulge in self-delusion, which he then used to justify his scheme to overturn the election, he is guilty for much the same reasons as the thief who - without any justification - imagines himself to be the rightful owner of the object he steals.
Perhaps that reasoning doesn't apply to a defendant who is simply incapable of understanding the truth, as in the case of people suffering from some types of mental illness. But Trump is not sick, just evil. Still, the option of pursuing an insanity defense is open to him, and perhaps he can attempt it at trial.
Some philosophers and legal theorists deny that either retribution or deterrence is a justifiable ground for punishment. If that's your view, I'm not going to suggest you make an exception for Trump. But if, like most people, you believe that prosecution and punishment are sometimes justified on one or both of these grounds, than this case is a particularly compelling one. Jack Smith is right to prosecute Trump over his schemes to overturn the 2020 election because the man deserves severe punishment, and because it is important to deter future leaders from following in his footsteps.
In a previous post, I have addressed claims that prosecuting Trump is an example of "banana republic" behavior, and the idea that it is wrong to go after him when others, such as Biden, Pence, and Hillary Clinton may also be guilty of wrongdoing. The points made there also apply to claims that it is wrong to prosecute Trump because President Biden's son Hunter Biden apparently got off lightly for his own offenses. Even if it is true that Hunter Biden got an unjustified sweetheart deal, that in no way justifies letting Trump off the hook for vastly more serious crimes.
