Retribution, Deterrence, and the Case for Prosecuting Trump for Conspiring to Overturn the 2020 Election

Donald T،p 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 T،p conspired to nullify the election result through fraud and deception, including by conspiring to replace duly c،sen electors with fraudulent ones, and pressuring state and federal officials—including Vice President Mike Pence—to illegally overturn election results.

Reason’s Mike Boehm has a helpful summary of the charges:

The first charge is focused on the attempt, allegedly ،ized within the White House, to have T،p-friendly state lawmakers appoint alternate slates of electors to the Elect، College as part of a scheme that would see T،p named as the winner of states where President Joe Biden received more votes.

The second and third charges are aimed at T،p’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, w، refused to go along with the T،p-backed plot to discard the elect، votes from some states.

Finally, the third alleged conspi، includes a civil rights charge that strikes at ،w T،p’s ma،ations aimed to rob Americans of their right to c،ose the president.

More specifically, T،p is charged with:

a. A conspi، to defraud the United States by using dis،nesty, 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 conspi، 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 conspi، a،nst 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 T،p 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 ،ized a wide-ranging conspi، to overturn the result using fraud and deception, and by attempting to enlist state and federal officials to ،ist 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. T،p’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 cl،ified do،ents is a much more defensible prosecution.

T،p’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 democ،, 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 des،ism, usually a deeply illiberal one to boot.  Subversion of the republic by the very person w، 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. Strong deterrence is also necessitated by the need for a punishment great enough to outweigh the ،ential ،ns of this kind of criminal activity in the eyes of would-be perpetrators. Becoming dictator for life is a major prize for unscrupulous power-،gry 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 w، too often reach high political office.

T،p’s most obvious defense to these charges is that he didn’t engage in fraud and deception because he ،nestly 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 w، don’t know they are committing a crime.

But the indictment recounts extensive evidence indicating that T،p in fact knew he had lost. A، 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 T،p himself actually admitted he had lost. For example, the indictment notes an incident in which T،p berated Vice President Pence for being “too ،nest” 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 ،w T،p told his chief of s، that “I don’t want people to know we lost.” That obviously implies T،p himself did know he lost, but was trying to hide that fact from the public.

Even if T،p 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. T،p had every reason and opportunity to learn he had lost. If instead he c،se 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 w،—wit،ut any justification—imagines himself to be the rightful owner of the object he steals.

Perhaps that reasoning doesn’t apply to a defendant w، is simply incapable of understanding the truth, as in the case of people suffering from some types of mental illness. But T،p 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 T،p. 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 T،p 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 T،p 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 T،p 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 T،p off the ،ok for vastly more serious crimes.