With the handing down of the Georgia indictment, we now know the basic contour of former President Donald Trump’s criminality after the 2020 election. Special counsel Jack Smith may have brought a narrower case under federal law while Fulton County, Georgia District Attorney Fani Willis (D) pursued a broader case using Georgia’s RICO statute, but they both agree that Trump lost the 2020 election, lied about it and undertook a scheme to overturn the results.
That scheme — whether called a conspiracy or RICO — involved a group of Republican lawyers and others who first filed frivolous litigation and, when that didn’t work, eventually settled on submitting fake electors with the hope that state legislatures and the vice president would overstep their constitutional boundaries. Finally, it led to the violent attack on the U.S. Capitol.
These indictments are critical to our system of justice and the rule of law. But they cover only a fraction of the damage Trump and his allies have done to our system of elections. The indictments only cover a snapshot in time. To present their cases to a jury, prosecutors need to tell a story of criminality with a beginning and an end.
The Georgia indictment claims that Trump began his conspiracy on Nov. 4, 2020 — the day after the 2020 general election. The Washington, D.C. grand jury pegged the date as ten days later, on Nov. 14, 2020. Both indictments agree that the illegal conduct began after the election.
But the specific legal charges do not define the underlying conduct, only its prescribed penalty. We should not allow the criminal law to cramp our understanding of how corrosive Trump was before the 2020 election and how dangerous he remains today. The criminal law may set the outer boundaries of what can be punished but it does not define the parameters of harm to individuals and to society.
The truth is that Trump has never believed in free and fair elections. When he considered running for president in 2012, Trump became the leading proponent of “birtherism” — the racist conspiracy theory that former President Barack Obama was not born in the United States.
Before the 2016 election, he claimed that it “is absolutely being rigged.” He decried that Republican leaders were not doing enough to combat “large scale voter fraud.” He used his very first meeting with congressional leadership as president to falsely tell them that “millions of unauthorized immigrants had robbed him of a popular vote majority.”
The run up to the 2020 election was even worse. Though the indictments only charge Trump with conspiring to illegally overturn the results after Election Day, the reality is that he started much earlier.
In 2019, a key Trump aide was caught on tape bragging about the fact that “traditionally it’s always been Republicans suppressing votes in places” and advising Republicans to “start playing offense a little bit.” By spring 2020, Trump was routinely lying about mail-in voting and voter fraud.
In the weeks leading up to the general election on Nov. 3, 2020, Trump’s rhetoric grew bolder — advocating for complete disenfranchisement of millions. It is no surprise that the Georgia indictment notes that on Oct. 31, 2020 — four days before the election — Trump “discussed a draft speech…that falsely declared victory and falsely claimed voter fraud.”
As Politico put it on the morning of the 2020 election: “Trump has been openly discussing murky schemes to prevent legitimate ballots from being counted, escalating threats to disenfranchise millions of Americans as the weeks-long voting season ends tonight and his pathway to reelection becomes increasingly narrow.”
Just as Trump’s attack on democracy did not begin after Election Day, it did not end after Joe Biden was sworn in as president. For a federal prosecutor looking to bring a targeted case and score a quick conviction, ending the conspiracy on the day Biden was inaugurated makes legal sense. But our democracy has not been as fortunate.
Throughout 2021, we saw Republican legislatures enact new voter suppression and election subversion laws. We witnessed attacks on nonpartisan election officials and a weakening of local election administration. In 2022, a new wave of MAGA Republicans ran for office on a platform of election denialism. When they lost, they repeatedly attacked the 2022 election process with the same fervor of false conspiracies as we saw from Trump in 2020. At every stage, Trump was cheering them on, always attacking and always spewing hate and election lies.
To her credit, Willis recognizes that Trump’s lies continued. In her telling, the conspiracy of lies and perjury stretched into 2022. But she too, like Smith, is understandably focused only on the continued lies about the 2020 election, not about 2022 or 2024.
Trump’s attack on our democracy continues to this day. He has converted the entire GOP into an anti-democracy machine spewing hate and disinformation. His acolytes target election officials and demonize voters. They celebrate voter suppression and funnel their creativity into finding new ways to disenfranchise young and minority voters.
We can and should celebrate the two election-related indictments. Smith and Willis have done their jobs and a service to the country. However, we should not allow their narrow mandate of proving a specific crime beyond a reasonable doubt to limit our understanding of the broad harm Trump and his allies have done and continue to do to our country and free and fair elections.