In his indictment of Donald Trump for conspiring to overturn the results of the 2020 presidential election, the special counsel Jack Smith makes a glancing reference to the Gettysburg Address. It is not, however, the one delivered by Abraham Lincoln on the Pennsylvania battlefield in 1863. Smith cites, rather, a public event in the ballroom of the Wyndham Hotel in Gettysburg, a ten-minute drive from the cemetery where Lincoln spoke in honor of the Union dead. It happened on November 25, 2020, the day after Pennsylvania’s governor had certified Joe Biden’s victory in the state’s presidential election.
It was at the Wyndham that the man Smith calls Co-Conspirator 1, Trump’s personal lawyer Rudolph Giuliani, “falsely claimed that Pennsylvania had issued 1.8 million absentee ballots and received 2.5 million in return.” Trump himself addressed this gathering by phone from the Oval Office, claiming that “this was an election that we won easily.” As the indictment makes plain, Trump knew that this claim was a lie. As for Giuliani’s specific allegation about absentee ballots, Smith reports that “a Campaign staffer wrote internally that Co-Conspirator 1’s allegation was ‘just wrong’ and ‘There’s no way to defend it.’”
This Gettysburg gathering was a one-sided public “hearing” into the conduct of the election in Pennsylvania, called by the far-right Republican state senator Doug Mastriano. (In 2020 Mastriano was the failed Republican gubernatorial candidate in the state.) It seems clear that Mastriano had chosen the location purposefully. He opened his speech by referring to “this most historic town” and “what happened 157 years ago last week.” He said that the final sentence of Lincoln’s address “captures why we are here today”: “That government of the people, by the people, for the people, shall not perish from the earth.” Mastriano warned that “everything is at stake…the republic is at stake.”
This was—and is—true, but only in the sense that an arsonist calling “Fire!” even as he sets the building ablaze is telling the truth. The republic is indeed at stake in this indictment and the trial or trials that will result from it. The question that Lincoln posed at Gettysburg was whether a democratic system of government “can long endure” in the US. Smith’s legal prose is calm, cool, and precise. His indictment is, in some respects, notably restrained: it does not charge Trump with sedition, insurrection, or direct incitement to violence in the January 6 assault on the Capitol. Yet it poses a genuinely existential question. Of the three criminal plots it alleges, the third is “a conspiracy against the right to vote and to have one’s vote counted.” What threat could be more fundamental? If such a scheme can go unpunished—especially when it is run by and for a president who has just been voted out of office—it will not be long before the American republic perishes from the earth. It will die because, were such impunity to be established, there would be every incentive not merely to repeat Trump’s botched coup of 2020, but to learn from its failure and refine its methods.
Smith memorably cites a senior adviser to the Trump campaign whom he does not name but who has been widely identified as Jason Miller, complaining about the poor quality of the allegations of fraud on which Trump based his campaign to overturn the result of the election: “It’s tough to own any of this when it’s all just conspiracy shit beamed down from the mothership.” To develop Miller’s analogy, we might ask: What kind of alien invasion movie was this conspiracy? It was Invasion of the Body Snatchers. In that 1956 film, the aliens take on the exact likenesses of the humans they ingest, except that these duplicates are devoid of human meaning. Trump and his co-conspirators attempted to obliterate American democracy by creating empty replicas of its procedures and its values. They did it badly, but if the mothership remains intact, next time it will beam down better shit.
The grotesque travesty of the Gettysburg Address to which Smith alludes in the indictment—the first time as republican tragedy, the second time as fascistic farce—points up the weirdly, and parodically, imitative nature of the conspiracies he unfolds. Authoritarian movements seldom disavow democracy. They turn it into a charade. They preserve its forms while strangling its substance. The indictment cites an internal comment in December 2020 by Trump’s deputy campaign manager Justin Clark, about the evolving plan to create fake electors: “The way this has morphed it’s a crazy play.”
It was indeed a crazy play, a political version of a Black Mass in which the whole character of the democratic process was reenacted as a caricature of itself. Three times Smith uses the word “mimic” to describe the Trump team’s efforts to figure out “how fraudulent electors could mimic legitimate electors in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin.” These body snatchers would replicate “as best as possible the actions of the legitimate Biden electors.” Essentially what he is describing is an attempt to replace the democratic process with a simulacrum. It would be the final triumph of the Trumpian alternate reality.
This mimicry was also a mockery. Just as the memory of Gettysburg was transformed into its opposite, the conspiracy as a whole relied on the same kind of transference—claiming to be defending democracy against its own depredations and accusing others of its own crimes. It is startling to be reminded in the text of a criminal indictment that Trump himself used the threat of criminal indictment as part of his attempt to overturn the election. On January 2, 2021, Trump called the Georgia secretary of state Brad Raffensperger, a Republican, to demand that he “find” enough votes to overturn Biden’s victory in the state. Smith quotes Trump’s direct threat to Raffensperger and his counsel. He warned them that they were in more legal danger than the alleged perpetrators of the nonexistent electoral fraud:
It’s more illegal for you than it is for them because you know what they did and you’re not reporting it. That’s a criminal, you know, that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you and to…your lawyer.
Trump’s supporters, in other words, have to believe that it was a crime for Raffensperger to refuse to fabricate 11,780 votes that had not been cast, but not a crime for Trump to threaten a state official with prosecution for refusing to conjure them up.
This is part of a much larger pattern. Not content merely to wield the whip of power, Trumpism claims ownership of the wounds it inflicts. It tries to usurp all the outrage it generates. Trump is always—in his own mind and in those of his enablers and fans—the victim of his own crimes. He creates, as the indictment puts it, “pervasive and destabilizing lies” but presents himself as the most lied-about person in history. He engages in relentless fakery but denounces all inconvenient facts as fake news. He pushes the US toward autocracy but claims, as he did on his Truth Social network just before Smith issued his indictment, that the case against him would be “reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes.” This is Trump’s signature trick: he uses the right labels for what he is doing but sticks them on the foreheads of those who are getting in his way.
Hence the strangely enclosed nature of the indictment. It is an allegation of fraud about allegations of fraud. Smith’s first count is “conspiracy to defraud the United States,” a magnificently succinct definition not just of Trump’s specific delinquency but of his whole political career. But fraudulence here is both the crime and the weapon used to commit it: Trump crying “Fraud!” fraudulently. This is not mere hypocrisy but something much stranger and deeper. At the heart of Smith’s indictment is the attempt to pin down the most slippery of crimes, an organized conspiracy to make a very big something (Trump being declared the winner of the election) out of a whole heap of nothing (the absence, in Smith’s phrase, of “outcome-determinative” abuse of the electoral process). The essential crime was to create an existential threat to American democracy from materials that did not exist.
These fictions would if necessary become bloody facts. The most chilling moment in the indictment is the reply from Co-Conspirator 4, assumed to be the then–assistant attorney general Jeffrey Clark (whom Trump wished to appoint as acting attorney general), to a suggestion that, if Trump refused to give up the presidency, there would be “riots in every major city in the United States”: “Well…that’s why there’s an Insurrection Act.” This is in keeping with a statement also quoted in the indictment from Co-Conspirator 2, presumably Trump’s legal adviser John Eastman, that “there had previously been points in the nation’s history where violence was necessary to protect the republic.” That was on January 4, 2021, two days before the assault on the Capitol. The full logic of protecting the republic by destroying it violently had taken hold at the center of the Trump administration.
What is most impressive in Smith’s laying out of his case is his ability to weave a clear path through this hall of mirrors. He does this by cutting right to the heart of Trump’s cognitive trickery. Trump’s relationship to his fan base is rooted in knowingness—which is not at all the same as knowledge. Knowingness is collusive. It rests on the understanding by his listeners that there is a game in which they are players, a willingness to make allowances for—and delight in—exaggerations, provocations, and luridly entertaining lies.
There is a kind of creativity in this destabilization of the difference between lies and truth. Smith cites in the indictment an e-mail written by an unnamed Arizona attorney who was being recruited by Co-Conspirator 5 (generally taken to be the Trump legal adviser Kenneth Chesebro) into the scheme to create fake electors, in which he or she calls the plan “kind of wild/creative.” There is a sense of fun about the whole thing. Such playfulness may appall anyone who considers the fundamental nature of what is at stake, but its importance to Trump’s power should not be overlooked.
Smith refuses to play this game. He switches the word “knowing” back to its primary meaning. He takes it out of the realm of mental gymnastics and drags it firmly back into very different territory: mens rea, the guilty mind. He uses the word repeatedly and always couples it with a synonym for lies, trying out “knowing deceit” once but sounding his verbal leitmotif “knowingly false” around thirty times in forty-five pages. The bulk of the indictment is taken up with evidence not just that Trump lied repeatedly about the results of the election, often with highly specific allegations against innocent individuals, but that he knew very well that he was lying.
He knew it because, as Smith takes pains to show, he was told over and over by his own campaign staff and official advisers that there was no truth to his claims. Giuliani pointed out in his response to the indictment—as Smith, in effect, does in the indictment itself—that “you have the right to lie under the First Amendment.” But do you have a right to deploy concerted lies in order to deprive your fellow citizens of their right to have their votes counted and to choose their presidents? That, surely, will be the crux of the case when it is eventually heard before a jury.
The potency and clarity of Smith’s indictment up the ante for those jury deliberations ever further, since this will not just be a sensational law case. It will be a case about the meaning of the law itself. For Trump, as for all autocrats, the law is an extension of his personal power. Having appointed 226 judges, including fifty-four federal appellate judges and three members of the Supreme Court, he regarded the legal system as just another Trump property with his name over the door. He expected it to do his bidding and deliver him a second term as president.
The “crazy play” he and his co-conspirators concocted to prevent the congressional certification of Biden’s election, and the nihilistic rage he unleashed on January 6, were hasty and haphazard responses to the dashing of those expectations. But given the opportunity, Trump or another presidential successor from the post-democratic Republican Party will follow the playbook of authoritarian leaders from Poland to India to Israel and learn how to vitiate the independence of the justice system while preserving the outward show of adherence to the law.
It is striking that all five of the alleged co-conspirators identifiable from the indictment—Giuliani, Chesebro, Sidney Powell, Eastman, and Clark—are lawyers. (The sixth is called a “political consultant.” The New York Times has suggested that he may be the Trump operative Boris Epshteyn, who is also a lawyer.) They too were body snatchers, engaged in the creation of an empty simulacrum, a replication of the processes and forms of law from which its inner meanings of justice, fairness, truth, and equality have been removed. Indeed, Trump’s team engaged in what might be called hyper-legality—they filed an astonishing sixty-two lawsuits in state and federal courts seeking to overturn election results in states that Trump lost. All but one of these cases failed, for the simple reason that they were all form and no content, all rhetorical demands and no evidence. But if we think of the campaign described in the indictment as a crude trial run, we can also see that there will be no shortage of lawyers who are willing to turn themselves into caricatures of their avowed profession in the service of an autocrat.
The antidote to this fake law is real law. Smith’s indictment may not tell us a great deal we did not already know about the actions of Trump and his cronies in the aftermath of the presidential election. But it translates the meaning of those actions from politics to law. Trump’s defense will be, in essence, that it was all politics and that in politics everything you do to your enemies is legitimate. The prosecution’s momentous task is to show that not everything in the functioning of a republic is politics in that sense. It must show that there are limits beyond which the pursuit of political power cannot go. If it were to fail, the consequences for the future of government of the people, by the people, for the people would be unlimited.