Yes, There Are Laws Trump May Have Broken While Trying to Overturn the Election by David Corn August 20, 2021 
Donald Trump speaking at a conference of conservatives in Dallas last month. LM Otero/AP Remember the big story from just three weeks ago? Donald Trump in late December had pushed then–acting Attorney General Jeffrey Rosen to declare the 2020 election “corrupt” so Trump and a group of Republican members of Congress could somehow overturn Joe Biden’s victory. (Rosen declined.) Days after that bombshell, the news emerged that Rosen had told the Justice Department watchdog and congressional investigators that Jeffrey Clark, a senior Justice Department official, had plotted with Trump to press department officials to falsely state that fraud investigations cast doubt on the election results. As I’ve noted, these Trump actions were truly worse than Watergate and ought to have triggered a full-scale scandal. But in an America still traumatized by Trump, this controversy has become yet another item in the long list of Trump outrages.
Presumably, Justice Department gumshoes and congressional investigators are continuing to dig into Trump’s nefarious actions to blow up American democracy. One question is whether Trump and Clark could be criminally prosecuted for this scheming and for using their offices to try to subvert the election. I contacted Norm Eisen, who was President Barack Obama’s ethics czar and co-counsel for the House Judiciary Committee during the first Trump impeachment, to ask about this. Here’s our back-and-forth:
Corn: Could Jeffrey Clark be prosecuted for trying to push DOJ officials to falsely declare the election corrupt? Under what laws? And would there be any criminal liability for Trump, who is clearly a co-conspirator?
Eisen: Yes and yes, depending on how the investigation evolves. For instance, 18 USC §610 makes it “unlawful for any person to intimidate, threaten, command, or coerce” a federal employee to “engage in…any political activity.” Prosecutors could decide Trump and Clark conspired to violate that statute. While there are not a lot of precedents, no president has ever gone this far into possible illegality before in American history.
Corn: Are there any statutes regarding use of federal office to defraud the public or encourage corruption?
Eisen: Robert Mueller often charged conspiracy to defraud the United States under 18 USC §371. That charge could apply because the courts have defined defrauding the United States as interfering with any lawful government function. There is certainly evidence that Trump and Clark among others were attempting to interfere with the lawful process of selecting a president, which Congress completes on January 6. Whether there is sufficient evidence to bring charges and win a conviction requires further investigation; what we know so far is likely just the tip of the iceberg.
There are numerous other statutes that should be investigated including 18 USC §241 and §595. The law is not so foolish as to allow no recourse for attempts to legitimately overthrow an election. But we need to let DOJ (and the January 6 Committee) dig into the factual predicate and determine what is a winnable case here.
The first of the two laws Eisen cited in that last paragraph makes it illegal for people to “conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” The second says it’s a crime for a federal or state official to use his or her official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for federal office.
Eisen is partisan. But it appears there are enough laws that Trump and Clark might have violated to justify a good look by federal prosecutors. In a matter as serious as this, the Justice Department should be fiercely investigating to determine if any prosecutions are warranted.
This week, Eisen mixed it up with CNN analyst Jeffrey Toobin on this point. Toobin had penned a piece asserting that Attorney General Merrick Garland should not prosecute Trump for his efforts to sabotage the election. Toobin wrote, “It's one thing to describe the former president's behavior as disgraceful and wrong—and I'd share that view—but quite another to argue that Trump should be criminally prosecuted. Based on the available evidence, there is no basis to prosecute Trump and little reason even to open a criminal investigation.”
The key words there: “based on available evidence.” As Eisen told me, more fact-finding is needed before a prosecution decision is rendered. But here was Toobin essentially proclaiming the verdict was already in: nothing to see, keep on moving (in terms of any prosecution). He cited the difficulty in proving Trump’s criminal intent, noting that Trump could insist his intent in plotting with Clark was to uphold the law, not illegally overturn election results. On Twitter, former prosecutor Barbara McQuade had something to say about that contention: “Could not disagree more. This assumes intent cannot be proven if someone lies about his own. No other criminals get that kind of pass. Trump shouldn’t, either. There’s more than enough predication to investigate and a substantial federal interest in protecting election integrity.”
On CNN, Eisen jousted with Toobin, declaring, “All I'm arguing is that of course the attorney general should investigate it. When you say there's little reason to even open a criminal investigation, that's wrong!" 
Richard Nixon paid a huge price for a lesser transgression. With federal prosecutors on his tail and impeachment and conviction likely, he resigned and scrammed. Though unelected President Gerald Ford subsequently pardoned Nixon and saved him from possible criminal prosecution, Nixon’s self-removal from office stood as a powerful deterrent for future scoundrels-in-chief—though, obviously, not for Trump. He was not restrained by this example from almost 50 years ago. That was especially so with the GOP becoming a Trumpian cult of personality that would stand by Dear Leader no matter who he grabbed, no matter how many Americans he killed with his pandemic ineptitude, and no matter how far he went to undermine democracy and threaten the Constitution. Consequently, it’s important for the security of the republic to establish a precedent: A president can’t get away with this skullduggery. Perhaps the evidence will not prove strong enough for a robust criminal case or the legal theory not be sufficient for an indictment. But the effort ought to be made. Not as revenge, but as an attempt to prevent the next time. With Trump still conniving and controlling the Republican Party, a next time does remain possible. 
If you’re enjoying This Land, please help spread the word by forwarding this to your pals, colleagues, and family, and let them know they can sign up for a free trial of This Land here. Gone Fishin’ Not really. Last time I went fishing, I hurt my hand casting. Yes, I did. A ligament snapped out of place and a lump the size of a golf ball swelled up. And I caught nothing. Another time I was fishing, I was far out at sea—beyond cellphone coverage (or so I thought)—and my phone rang, magically, it seemed. On the line was Arianna Huffington. A friend of Huffington was upset with a Mother Jones story about her, and Huffington wanted to know if the friend could call me. (All I could say to the friend was, you are free to send a rebuttal to the editors.) Anyway, I’m not fishing at the moment. But I will be taking off the next week. I hope you’ve been enjoying This Land. Perhaps enough to sign up as a premium subscriber for $5 a month. That will entitle you to all This Land content. In the meantime, let me know what you think of the newsletter so far. Email me at thisland@motherjones.com. I’ll be back in your inbox very soon. Dumbass Comment of the Week: Special Afghanistan Edition The tragic fall of Kabul to the Taliban this week triggered a flood of idiocy from Republican and conservative devotees of Trump, who last year negotiated the so-called “peace deal” with the Taliban that compelled the US troop withdrawal President Joe Biden has implemented. Suddenly these Trumpers were against the pullout Trump had engineered and recently hailed. (After the Taliban rushed into Kabul, Trump removed from his website his self-congratulatory praise of the Taliban accord.)
Trump sycophant-in-chief Lindsey Graham tweeted, “President Biden chose a dangerous and dishonorable path in Afghanistan and he has no one to blame for this debacle but himself.” Uh, Trump chose this path. Perhaps the Biden administration executed the final stretch poorly. But this was the Trump plan. Graham knew this. He was cynically spewing disinformation to exploit a horrible situation. Mercedes Schlapp, a Trump cultist, did the same: “So disappointing that former President Bush did not criticize President Biden‘s catastrophic decision to withdraw from Afghanistan. Biden just destroyed Bush’s legacy on stopping the Taliban and helping Afghan women and girls have more freedom.” Catastrophic decision? It was Trump—for whom she worked in the White House—who had decided to end the US military intervention there.
J.D. Vance, a venture capitalist turned Trump-wannabe running for Senate in Ohio, who prominently identifies himself as a “Christian” in his Twitter biography, used the moment to earn jingoism cred: “I’d like to hear zero about Afghan refugees until we get every single American out first.” This was brazen xenophobia. Let’s not even consider how to help those Afghans who helped Americans? I suppose that’s exactly what Jesus would do. As Afghans were clinging to the outside of transport planes departing Kabul—and falling off as the planes ascended—Rep. Lauren Boebert (R-Colo.) thought the appropriate reaction was to be a cheap-shot troll: “The Taliban are the only people building back better.”
Meanwhile, Politico outdid itself by turning to Karl Rove to analyze the political fallout for Biden. Rove was the chief strategist for George W. Bush, who got the United States into the Afghanistan mess by invading the country after 9/11—to strike back at the haven for al-Qaeda—without any strategy for what to do after repelling the Taliban and running Osama bin Laden out of the country. Rove slammed Biden: “The attention span of Americans now is short. But they will make a lasting judgement about the fall of Afghanistan before the next something bright and shiny comes along. The view that President Biden bolluxed this badly, gave our enemies a big win, consigned 39 million people to barbarism and diminished America’s credibility and standing in the world—those will remain. It will be impossible for President Biden to wash this stain away.” Politico made no mention that Rove was part of the crew responsible for the past two decades of misguided and costly war in Afghanistan. What about that stain?
Which brings us to this week’s winner. This comment is not technically an instance of dumbassery. But it was crass, absurd, and outrageous. Bush issued a statement saying, “Laura and I have been watching the tragic events unfolding in Afghanistan with deep sadness. Our hearts are heavy for both the Afghan people who have suffered so much and for the Americans and NATO allies who have sacrificed so much.” No doubt, this was an accurate reflection of their emotional state. Of course, he and Laura are saddened by these developments. But Bush left out an important piece: an apology. He rode into Afghanistan to get the evildoers of 9/11, but then he failed to address the consequences of the war he launched. Worse, before figuring out what to do in Afghanistan, he shifted his attention to the truly stupid invasion of Iraq. He started that war too with little regard for long-term objectives, achievable aims, and exit strategies. Together these wars cost the lives of nearly 11,000 US soldiers and contractors, an estimated 47,000 Afghan civilians, and hundreds of thousands of Iraqis. That’s a lot of blood—and much for Bush and the missus to be saddened by long before the fall of Kabul. The Mailbag I recently snapped at critics who chastise me whenever I tweet about a Trump statement. These folks insist that by doing so I am helping Trump elude the ban slapped on him by Twitter, Facebook, and other social media outfits. I pointed out, “It’s not my job to reinforce the deplatforming of Trump. My job—at least part of it—is to report on threats to the United States. And despite the election results of last November, Trump remains a profound threat to the nation.” I asked what others thought of my argument—and the emails poured in.
Mary Wells wrote:
I agree with the common thought of shutting T out of the air waves and digital world. But a weekly bullet list of the newest attacks on democracy should be noted along with what can be done and by whom on these…threats. No audio. No film footage. No long and angst-filled articles or podcasts.
Rhiannon Hutchinson chimed in:
I understand your perspective, and certainly some continued reporting about Trump is warranted. But I urge you, most strongly, not to simply report his message as traditional reporting does. Instead, I hope you’ll consider a solutions journalism approach, in which you heavily focus not on his message but on how immoral it is, and what we can do to keep him out of power….I realize that isn’t what journalists usually see as their job, but it is the ONLY safe way to report on Trump. Otherwise, you scare, anger, and demoralize people, just when we most need strength, guidance, and encouragement.
Andy Schauer shared a similar sentiment:
Covering Trump in the usual way is precisely what makes him the level of threat worth reporting on. I don’t think you should ignore him altogether—empirically, wholesale suppressing a topic of discussion or anything else is always a losing proposition—but I do think a tonal shift might help you manage these competing issues.
Put another way: This threat to the United States is an emperor who has no clothes. Your job “is to report on threats to the United States.” To that end it 100-percent makes sense to report on the emperor and those pretending to see his “beautiful robes (the most beautiful robes you have ever seen…).” But when you report on DJT taking for granted that he is a threat, it’s effectively like you’re clothing him with credibility. I’m not sure if that makes sense, and even if it does it may sound like splitting hairs, but as a lawyer and student of communications and ethics I hope that makes some sense.
Most folks, not surprisingly, were on my side.
Nancy Petty emailed:
I agree with your reasons for reporting DT’s comments. I also think that we need to be aware of the danger he and his ilk pose to our country and the world. Before the 2020 election, I messaged you on Twitter about what I saw in Citrus County, Florida, regarding the trend of DT supporters pulling away from the traditional Republican Party and coalescing around DT and DT only. Last week, I drove home from work the back way through the edges of the Ocala National Forest in Marion, Sumter, and Lake Counties. I saw a disturbing number of “Trump 2024” signs and flags such as those seen during the Capitol riot on January 6. The DT virus is still surging in central Florida along with the coronavirus. Keep reporting. It can still happen here.
Tim Hildebrandt wrote:
You are correct in reporting on Trump’s influence. Even though I despise the man and all his mindless minions, the threat remains and must be tracked. One question is: Is it not unlikely that he would be reelected because of pending investigations, two impeachments and many other reasons he would not be eligible?
So far, Trump is not ineligible. And even if he were to be convicted of a crime of some sort, I believe he still could win the GOP primary. There are only three constitutional requirements to be president: You must be a natural-born citizen of the United States, at least 35 years of age, and an American resident for 14 years or longer. Didn’t Lyndon LaRouche Jr., the political cult leader, run for president while in prison? Indeed he did—during the 1992 campaign, while he was serving a 15-year sentence for illegal fundraising. A campaign poster read, “Lyndon H. LaRouche…for President: The only opponent George Bush feared enough to put in prison.”
Greg Dormer was adamant:
No, we should not ignore Trump and his statements. Someone has to explain these statements in the light of truth, reason, and logic. To let Trump continue to brainwash his brownshirts unabated is the worst thing we can do.
Terry Weakly added:
Too many on the left will say how totally disgusted they are with TFG but tell me/us to stop talking about him and his continuing attack on America. “We know, just stop talking about it.” To stop talking about TFG and his attack is to embolden him and give him a green light to continue.
Mechelle Schneider agreed:
He remains at threat to our country. In my early twenties, I was riveted to coverage of Watergate. Watergate pales in comparison to what Trump did to our country in four years. Since Biden’s election, I have read nearly every book out about Trump. I questioned my obsession, but I believe it is due to my horror over what Trump and his followers have done to our country. We cannot afford ignore Trump.
Robert Yingst sent in a simple message: “Thank you for your vigilance.” Robert, you’re welcome.
On another matter—my recollection of overhearing members of the Police screaming at each other prior to one of their first shows in the United States in 1979—Jeffrey Campbell had this to say:
I loved the Police. So imagine my excitement when I ended up playing guitar with Sting on his “Nothing Like the Sun” world tour. (I was selling candy in Broadway theaters when he hired me. Two weeks later, I was on SNL! )...My Sting memoir Don’t Stand So Close: My Improbable Adventure as Sting’s Guitarist (Deeds Publishing) was released a couple of years ago. Critic Bob Lefsetz called it “the best book I’ve ever read about being on the road. Positively astounding.”
I’ve heard a few tales about Sting on the road. We’ll discuss that another time.
Got suggestions, comments, complaints, tips related to any of the above, or anything else? Email me at thisland@motherjones.com. MoxieCam™ Moxie at the beach on Cape Cod. 
Read Previous Issues of This Land August 17, 2021: The Afghanistan debacle: how Bush, Obama, Trump, and Biden bamboozled the American public; the “Banana King” of Wellfleet, Massachusetts; and more.
August 13, 2021: Hey lefties, stop telling me not to report on Trump’s dangerous comments; Dumbass Comment of the Week; rock ’n’ roll flashback: Sting abuse at a Police show; MoxieCam™; and more.
August 10, 2021: Look who’s organizing a pro-January 6 rally at the Capitol; an inspiring tale from the Myanmar jungle; the best album of the year so far; and more.
August 7, 2021: Are non-vaxxers and anti-maskers just too damn selfish?; Dumbass Comment of the Week; Mailbag (can you still watch your favorite old movies if they now make you cringe?); MoxieCam™; and more.
August 3, 2021: When “worse than Watergate” is really worse than Watergate; Apple TV+’s “comedy” Physical is no comedy, but it’s worth watching; This Land in Photos (West Virginia); and more.
July 31, 2021: Can you still watch your favorite movies?; Dumbass Comment of the Week; Mailbag (more on Lennon versus McCartney); MoxieCam™; and more.
July 29, 2021: Is a country music star encouraging more January 6-like violence?; a civil rights hero more people should know; and more.
July 27, 2021: Are Republicans going to sabotage police reform that doesn’t even go far enough?; how to put a senseless murder to good use; how sober is Liz Phair?; and more.
July 24, 2021: Has Paul McCartney finally won me over?; Dumbass Comment of the Week; Mailbag; MoxieCam™; and more.
July 22, 2021: My bizarre encounter with Rep. Jim Jordan—and why Speaker Pelosi was right to bounce him from the 1/6 committee; celebrating and grieving with musician Steve Earle; and more.
July 20, 2021: The time a Republican president did the right thing to stop an epidemic; Trump’s big narcissism fail; Nelson Algren and Norman Podhoretz; a new psychedelic Beatles-esque tune; and more.
July 17, 2021: Why the Guardian’s Trump-Russia bombshell—dud or not—doesn’t fully matter; Dumbass Comment of the Week; why Bosch works in spite of Bosch; MoxieCam™; and more.
July 15, 2021: Does President Joe Biden really stand with the Cuban people?; the time I really pissed off the Cuban regime; J. Edgar Hoover vs. MLK; one of the best movie reviews of all time; and more.
July 13, 2021: A coming referendum on Donald Trump; a suggestion for Hunter Biden; a new book on how the super-rich screw us all; and more.
July 10, 2021: Why the Republicans are right to be terrified of the new House committee investigating the 1/6 attack; Dumbass Comment of the Week; Joni Mitchell’s Blue 50; and more.
July 7, 2021: How The Summer of Soul counters the GOP’s season of hate; a debate on the recent UFO report; Garry Trudeau, American Dostoyevsky; MoxieCam™; and more.
July 3, 2021: Donald Rumsfeld, Christopher Hitchens, the Iraq War, and me; the perils of taking a home DNA test; Dumbass Comment of the Week; a Springsteen story; and more.
July 1, 2021: Ivanka Trump, Donald Trump Jr., and perjury; Adam Serwer’s new book; Cézanne’s crime scene; and more.
June 29, 2021: How the new UFO report is bad news for UFO believers; my own UFO tale; HBO Max’s Hacks; an anti-racist anthem; and more.
June 26, 2021: Is Josh Hawley dumb or evil? (The answer is not both); Dumbassery that encourages mass “executions” in the United States; renowned guitarist and songwriter Richard Thompson’s new tour and new book (and his claim regarding the best strings arrangement ever on a popular song); MoxieCam™ (before and after photos!); and more.
June 24, 2021: How an alleged 1/6 conspirator who called for executing Trump’s foes hooked up with a prominent Republican Party official; new Los Lobos; and more.
June 22, 2021: Why the GOP is pushing “political apartheid”; Ted Cruz wins Dumbass Comment of the Week; recommendations for an Apple TV+ series and a book on the curious origins of the universe; the first Clash tour of the United States (and being trapped in a van driven by a punk on acid); MoxieCam™; and more.
Got suggestions, comments, complaints, tips related to any of the above, or anything else? Email me at thisland@motherjones.com.
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