Let me state up front that I was critical from the start of former President Donald Trump’s refusal to accept the result of the 2020 election, and strongly condemned his failure, until it was too late, to speak out against the disgraceful attack on the Capitol on Jan. 6, 2021. Trump’s shameful silence, inaction and seeming acquiescence during that horrific siege against the cathedral of democracy, and the brutal attacks that caused so many police officers to be injured and hospitalized, can never be explained away or defended. It will be a lasting shame and a blot on his record and legacy.
While I remain as outraged now as I was then by Trump’s dereliction of duty, which could well have warranted impeachment, I strongly believe that his recent federal indictment arising out of Jan. 6 and the events preceding that day is misguided, an abuse of prosecution and a threat to democracy.
Before the usual suspects accuse me of blind partisanship, I remind everyone that I voted against every article of impeachment against President Bill Clinton, incurring the wrath of many Republicans, some even to this day. I do not believe the Constitution or the criminal justice system should ever be weaponized against political opponents. For democracy to survive and thrive, political struggles and battles should be fought in the political arena, not in the criminal courtroom.
What is being lost in much of the heated discussion about the Jan. 6 indictment is that Trump is not being charged with inciting violence against the Capitol or for failing to act to halt that violence. Instead, the indictment reads more like a political screed than a legal document.
It charges Trump with attempting to undo the results of the election through a series of lies, exaggerations and distortions. Assuming the validity of any or all of those allegations, they should be debated politically, not as a matter to be presented to a grand jury or a criminal trial jury.
Pursuing indictments on this basis will have a chilling effect on the political process. The First Amendment guarantees freedom of speech unless there is incitement to violence or riot. Yet Trump is not charged with incitement to violence or riot. As indefensible as lying or gross exaggerating may be, they are not crimes. And if they were, how would Trump’s statements be anywhere near as egregious as the lies perpetrated by Obama administration officials and so many leading Democrats who falsely charged that Trump’s 2016 campaign colluded with the Russians — basically accusing the winner of the 2016 election to be a Russian operative?
I distinctly recall, as a member of the Intelligence Committee, sitting through endless closed hearings, and listening to testimony from numerous witnesses offering no evidence of collusion. Yet I would see on the news, especially CNN and MSNBC, Democrats such as Rep. Adam Schiff racing to the microphones to breathlessly state that clear evidence of collusion had been revealed to the committee. In fact, the only evidence of collusion was the Clinton campaign’s role in initiating the now discredited Steele dossier, which was based on misinformation provided to a retired British spy by a former Russian intelligence operative.
Even worse was the FBI and CIA’s use of the dossier to justify their finding of Russia-Trump collusion.
Similarly, Democrats made a folk hero and martyr of Stacey Abrams, who claimed for several years, with no credible evidence, that victory was stolen from her in the 2018 gubernatorial race in Georgia.
For Special Counsel Jack Smith to win a conviction of Trump, he must prove that Trump did not believe the election was stolen. This puts the prosecutor in the dangerous position of reading a candidate’s mind — not proving that Trump was wrong or mistaken, but that he knew he had lost. I believed then, and do now, that while there were irregularities arising from the use of so many absentee and mail-in ballots because of Covid, Joe Biden was the lawful winner. But lawyers and advisers on whom Trump relied assured him he had won and that the election was stolen. Though misguided, reliance on that advice does not constitute a crime.
A presidential election is the ultimate expression of American democracy. It was wrong for Trump to cast doubt on the results in 2020. It is also wrong and dangerous for a special counsel appointed by the Biden administration to base a criminal indictment of Biden’s leading opponent in 2024 on a tortured, attenuated interpretation of statutes that require a reading of Trump’s mind. This can only lead more Americans to doubt our democratic process, especially at a time when there is mounting evidence that the Biden Justice Department is failing to fully investigate allegations of Biden family corruption.
Donald Trump may not be a sympathetic defendant or victim. But the Constitution and its protections apply to all Americans, popular and unpopular, sympathetic and unsympathetic. That is the essence of our democracy, which we should not further threaten or jeopardize by replacing the political arena with the threat of criminal prosecution. That is not what America is about.
Peter King is a former congressman, and a former chair of the House Committee on Homeland Security.