Matt Taibbi has been a thorn in the side of the Left for his incisive commentary that’s shredded most of liberal America’s anti-Trump narratives. He’s a Russian collusion skeptic who regularly observed how his side has gone off the rails. He and other reporters have categorized the systemic censorship and political influence peddling at Twitter before Elon Musk’s takeover. These reports earned him the ire of congressional Democrats, but Taibbi is a classical liberal. And the former contributing editor for Rolling Stone probably offered the most even-keeled take on the January 6 indictment against Donald Trump.
He noted it’s a layer cake: “a surreal mix of conventional law and authoritarian lunacy.”
Taibbi points to where Special Counsel Jack Smith should have ventured if he wanted to slap Trump with a genuinely damning indictment. At least one that he feels would be more palatable to the public, who are beginning to see that most of the legal actions against the former president are driven by political bias and animus rather than facts. The January 6 indictment embodies everything we’ve come to expect from a corrupt Department of Justice.
The ex-Rolling Stone reporter highlighted Trump's calls to state officials regarding results, which are damning but irrelevant because that’s not where Smith went on this indictment. Mr. Smith’s way does seem to hinder legal free speech, overstepping as he’s done in the past with interpreting criminal statutes. Since the anti-Trump lawyers at DOJ went down this predictable path, Taibbi takes a blowtorch to the three big areas he feels rewrites law based on supposed evidence that he finds “bananas” (via Substack):
Special Counsel Jack Smith’s indictment is a case within a case, a prosecutorial enchilada filled with things for people of all political persuasions to hate. The outside is a shell of a conventional conspiracy prosecution, and these parts are genuinely damaging for Donald Trump. Inside, it’s a deranged authoritarian fantasy, at times reading more like a 45-page Louise Mensch tweet than an indictment.
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If Smith simply focused on those damaging episodes in states like Arizona, Michigan, and Georgia, or on Trump’s interactions with Pence, this prosecution would be an easier sell to the general population. Instead, Smith has tried to pen a Unified Field Theory of insurrection that would massively expand the meaning of concepts like incitement to include false statements, tweets, and other forms of protected speech, down to classic Trumpisms like “I don’t care about a link… I have a much better link,” and “I have a lot of friends in Detroit… Detroit is totally corrupt.”
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In the opening passages of the indictment Smith rails against Trump’s “knowingly false statements,” saying they created an “intense national atmosphere of mistrust and anger,” intended to “erode public faith in the administration of the election.” I thought I was having an acid flashback when I read this passage. Instead of focusing on overt acts in the individual states, episodes which clearly make even some Trump supporters nervous, the prosecutors are after bigger game. They want to argue that by spreading “lies” Trump created an “atmosphere of mistrust and anger” that, by the end, they will argue led to the “violent” “attack” on the Capitol. This argument brings in fairly anodyne Trump tweets, like “Big protest in D.C. on January 6th. Be there, will be wild!”, or “Our country has had enough, they won’t take it anymore!”, and ties it to the crowd’s “Send it Back!” chants, its “steady, violent advancement” toward Capitol doors, and scenes of crowd members “violently attacking law enforcement.”
The Supreme Court in 1969 heard a landmark case, Brandenburg v. Ohio, that set an extremely high bar for government intervention in speech cases, making the standard “likely to incite or produce… imminent lawless action.” A tweeting campaign that begins in November and produces a general “atmosphere of mistrust and anger” that by January works a protesting crowd into a lather is exactly the kind of behavior Brandenburg says is not illegal.
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In the relentless, redundant style of an MSNBC broadcast or a Washington Post editorial — Smith’s prose in places definitely reads more like moral-clarity-era journalism than law — the prosecutor repeatedly mentions “knowingly false claims.” From a language standpoint alone, it’s wild stuff, like an exercise in how many times one can say the same thing in a handful of lines. In the second paragraph for instance Smith describes how Trump “spread lies” that were “false, and [Trump] knew they were false,” and repeated them even though they were “knowingly false claims.”
Smith in other words makes Trump’s state of mind central to the indictment. Even the New York Times markup of the document notes that “proving Mr. Trump’s mindset may be a key element to all the charges.” Therefore the craziest part of this document is the section beginning on page 6, called “The Defendant’s Knowledge of the Falsity of His Election Fraud Claims.”
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Unless I’m missing something, they’re aiming to prove intent without introducing evidence of Trump’s thoughts, which seems bananas.
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After Trump “maligned a Philadelphia City Commissioner” for stating there was no evidence of fraud, Smith noted that “as a result, the Philadelphia City Commissioner and his family received death threats.” There are two of these passages, and Smith seemingly doesn’t feel the need to prove causation in either, using this “Trump said things and as a result threats happened” without listing how the one affected the other, or showing that Trump knew his speech would result in threats, etc.
This goes back to the first problem, redefining incitement as something generalized and broad. Again, in Brandenburg, the court specifically ruled that lines like “Bury the n—” couldn’t be construed as incitement, yet here’s Smith arguing that Trump mean-tweeting former Philadelphia City Commissioner Al Schmidt by saying he was “being used big time by the fake news media” was an element of a crime because threats resulted.
We’re in for a helluva show, regardless. As Taibbi concluded, the public now must two camps to choose from, “between a serial line-crosser and more or less open gangster on one hand, and a gang of never-Trump lawfare aficionados who’d like to revive the Alien and Sedition Acts on the other.”
Again, Taibbi is no fan of Trump. Still, he’s also not going to play along with the nutty, authoritarian games his aide of the aisle is playing to go after a man whose sole offense is beating Hillary Clinton in the 2016 election.
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