The charges against Donald Trump for his efforts to undermine the results of the 2020 election were finally revealed on Tuesday. It’s the culmination of an investigation the former president and his allies have attacked as the weaponization of the Department of Justice.
But the very fact of the investigation and indictment establishes just the opposite. If the DOJ was weaponizing its investigative powers for political purposes, surely it would not be giving Trump the fodder to gain media attention and raise enormous sums for his 2024 presidential campaign.
This isn’t about politics. It’s about accountability, even if holding Trump accountable actually could help his political campaign.
It doesn’t take a political genius to see that the DOJ’s investigations are in some ways entirely against the political interests of Joe Biden.
Within 24 hours of Trump’s announcement that the DOJ had sent him a letter informing him that he is a target of special counsel Jack Smith’s 2020 election probe, Trump’s campaign had sent an email asking for potential donors to “make a contribution to show that you will NEVER SURRENDER our country to tyranny as the Deep State thugs try to JAIL me for life.”
Trump’s joint fundraising committee reported bringing in more than $35 million in the second quarter of 2023 — the quarter during which Trump was indicted by both Smith (in the classified documents case) and Manhattan District Attorney Alvin Bragg (in the hush money case). This is up almost 100% from the $18.8 million he brought in during the first quarter of the year, and reflected a massive amount of fundraising around the legal cases.
It doesn’t take a political genius to see that the DOJ’s investigations are in some ways entirely against the political interests of Joe Biden. And that is one of the commendable things about the investigations and indictments. They are not political.
The DOJ does not make prosecutorial decisions based on whether those decisions will benefit the president politically. It makes decisions according to DOJ’s principles of prosecution, which require prosecutors to consider whether “substantial federal interests” support a prosecution and which are designed to ensure the “fair, evenhanded administration of federal criminal laws.”
In Smith’s 2020 election probe, the federal interest is obvious. As the indictment makes clear, each of the three conspiracies charged — to defraud the United States through dishonesty, fraud, and deceit; to corruptly obstruct the Jan. 6 congressional proceeding at which the Electoral College ballots are counted and certified; and to injure Americans’ right to vote and to have one’s vote counted on Jan. 6 — “targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election.”
If federal prosecutors were to fail to seek accountability for those responsible for this assault, they would not be fulfilling their obligations under the DOJ’s principles of prosecution. The effort is spelled out in 45 pages of factual allegations covering the knowingly false claims of election fraud, the scheme to organize fraudulent slates of electors in seven swing states to submit Electoral College ballots for Trump even though he had not won those states, the attempted use of the DOJ to conduct sham election fraud investigations, the effort to pressure then-Vice President Mike Pence to fraudulently alter the election results, and the exploitation of the violence on Jan. 6 to double down on the false claims of election fraud and attempt to convince members of Congress to further delay certification of the vote. This multi-pronged attempt to overturn the will of the voters was an assault on American democracy as embodied in the U.S. Constitution and U.S. law. If federal prosecutors were to fail to seek accountability for those responsible for this assault, they would not be fulfilling their obligations under the DOJ’s principles of prosecution, and they would be failing the American people whose interests they serve. The fair administration of criminal laws also demands accountability for Trump and others involved at the highest levels in the conspiratorial scheme. Over 1,000 footsoldiers — those who answered Trump’s call to “fight like hell” — have been and are being prosecuted for their role in the effort to prevent the lawful and peaceful transfer of presidential power. Republicans in Michigan are being held accountable for their role in the fake electors scheme. Fulton County District Attorney Fani Willis is finishing up an investigation that will likely seek to hold accountable those who sought to interfere with the election results in Georgia. To fail to investigate and prosecute Trump and those who concocted the fraudulent scheme and sought to capitalize on the Jan. 6 violence would be tantamount to prosecuting only the drug runners and not the kingpin of a nationwide narcotics conspiracy. That is not the fair or evenhanded administration of justice. There’s little doubt that Trump will seek to turn this indictment into another fundraising opportunity with more attacks on Smith and claims of political persecution. Whether his supporters will blindly comply or read the indictment and think for themselves remains to be seen. The indictment should give significant pause to anyone considering giving Trump their vote, much less their money.
Mary McCord
Mary B. McCord is an MSNBC and NBC News legal and national security contributor, and co-host of the MSNBC podcast, "Prosecuting Donald Trump." She is the executive director of Georgetown Law's Institute for Constitutional Advocacy and Protection. She previously served as the acting assistant attorney general for national security at the Department of Justice and was an assistant U.S. attorney in the District of Columbia for nearly 20 years.
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