Trump Indictment III Means Relitigating The 2020 Election

One pattern that's kept reemerging in the Trump story since 2016 has been a constant stream of narratives that have been sold as verities, yet they've wound up collapsing into hoaxes years later. The first was the 2016 "pee tape" story that alleged Trump conspired with Russia to interfere in that year's election. This wasn't effectively refuted until the Muller Report in 2019. However, the Wikipedia summary at the link raises what may become a prophetic issue:

The investigation intentionally took an approach that could not result in a judgment that Trump committed a crime. This decision was based on an Office of Legal Counsel (OLC) opinion that a sitting president is immune from criminal prosecution, and Mueller's belief that it would be unfair to accuse the president of a crime even without charging him because he would have no opportunity to clear his name in court[.]

So the problem with the overall "pee tape" narrative was that it gave Trump no opportunity to disprove it, or at minimum to establish that it couldn't be proven beyond a reasonable doubt in court.

The second hoax was the 2019 first impeachment of Donald Trump, which was based on putative efforts by Trump to use Ukraine President Zelensky to provide damaging information about Joe Biden ahead of the 2020 presidential campaign. As it happened, the accusations have turned out to be a mirror image of the much better-established threat by Biden himself to withhold aid to Ukraine if a prosecutor who was threatening the Biden-supported Burisma company wasn't removed, a factor that's reemerged four years later.

The third quasi-verity involving Trump has been the January 6, 2021 demonstration and alleged incursion at the Capitol. This was the cause of Trump's second impeachment, just before he was to leave office in any case. Wikipedia summarizes the narrative:

The House of Representatives of the 117th U.S. Congress adopted one article of impeachment against Trump of "incitement of insurrection", stating that he had incited the January 6 attack of the U.S. Capitol. These events were preceded by attempts by Trump to overturn the 2020 presidential election, as well as his pushing of voter fraud conspiracy theories on his social media channels before, during, and after the election.

Last week's third indictment essentially rehearses the charges in the second impeachment and maintains the quasi-verity:

The indictment charges Trump with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction; and conspiracy against the right to vote and to have one’s vote counted.

So in effect, it opens the door to giving Trump the chance to make his full case in an official venue, even if the trial's outcome is potentially rigged against him. This is because he can bring in evidence via discovery, which appears to be what his lawyers have in mind. Via Red State:

Critical to the left’s J6 narrative is that the angry mob that showed up at the Capitol was working in Trump’s interests. Yet, the protesters began crashing the barriers on the Capitol grounds just as Trump’s congressional allies challenged former vice president Joseph R. Biden Jr.’s electors from Arizona.

Trump ally Rep. Paul Gosar (R.-Ariz.) objected to Arizona’s Biden slate, and it was seconded by Sen. Ted Cruz (R.-Texas), which triggered an adjournment of the joint session of Congress called to adjudicate the presidential elector slates sent to Congress by the state legislatures.

If one congressman and one senator challenge a state’s electors, the two chambers meet separately for a maximum of two hours of debate, followed by a vote. If both chambers vote to reject a state’s electors, they are taken off the board. They are not awarded to another candidate.

If Trump allies successfully challenged Arizona’s 11 electors, plus Georgia’s 16 and Wisconsin’s 10, Biden’s total would drop from 306 to 269—although any greater combination that took any candidate below 270 would do.

When no candidate reaches 270 electoral votes, the presidential election goes to the House of Representatives. In the House, each state’s delegation votes, and because Republicans had majorities in more House delegations than the Democrats, Trump would have been expected to win his second term.

While the House and Senate debated Arizona, the protesters crashed the gates, leading to both chambers going into a recess. When Congress reconvened, the Trump allies lost support, and objections to the Biden electors became politically untenable.

In effect, the crashing of the Capitol gates disrupted the plan developed by Trump’s congressional allies—it was not in any way part of a plan for Trump to subvert the Constitution or seize power.

The J6 protesters blocked Trump’s challenges, ensuring he would have to relinquish power on January 20, 2021.

Trump's Lawyer Christina Bobb makes the point, which is echoed by Alan Dershowitz, that Trump's January 6 plan was simply to exercise his constitutional right to petition Congress for redress of grievances, which was interrupted by the January 6 Capitol incursion, whose origins have always been suspicious. At the link above,

Bobb said 20 months after J6; there are still questions.

“OK, who started it? Did you start it, FBI? Did you start it, Department of Justice? Did you start it, Capitol Police? Because somebody moved to the barricades,” she said. “We gotta get all of that information.”

This in turn has caused Smith's prosecution team to do all it can to prevent material Trump's defense obtains through discovery from being made public. Late Friday evening, it filed for a protective order:

In the filing, prosecutors urged U.S. District Court Judge Tanya Chutkan to issue an order prohibiting any findings related to the case be kept from public view.

“Such a restriction is particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him,” Senior Assistant Special Counsels Molly Gaston and Thomas Windom wrote in the filing. “And in recent days, regarding this case, the defendant has issued multiple posts—either specifically or by implication—including the following, which the defendant posted just hours ago.”

The filing does not specifically request a gag order against Trump, which would bar him from discussing the case altogether outside the courtroom or with the media. However, prosecutors noted they are set to share a “substantial” amount of evidence to Trump’s team, which they are trying to keep out of public view while criminal proceedings play out.

Their problem is that they're dealing with Donald Trump. In the filing, they demonstrate a rudimentary insight into how Trump is going to operate -- he's going to use the media against itself. Their need to cover Trump is irresistible, because his style is outlandish -- but that in turn means it's going to be much harder to sustain a mediating narrative that maintains the quasi-verities. And apparently the prosecutors understand this perfectly well.

So they'll need to keep Trump's mouth shut, which will be almost impossible, and in the process, he'll have the opportunity to relitigate not just January 6, but the 2020 election, likely with evidence the prosecutors will be forced to provide while doing their best to keep it from being public.

This whole idea of basically reopening the unsuccessful second impeachment is turning out to be reckless and hamartic.