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Why No Insurrection Charge? Ralph Nader on How Trump Could Still Be Reelected Unless DOJ Acts

StoryAugust 15, 2023
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Ralph Nader, the longtime consumer advocate, corporate critic and former presidential candidate, discusses “serial law violator” Donald Trump’s criminal indictments, particularly the second federal case brought by special prosecutor Jack Smith that accuses Trump of conspiracy to overturn the results of the 2020 presidential election and of inciting the January 6 attack on Capitol Hill. Nader says there is a glaring omission in the charges, and says Trump should be additionally charged under Section 3 of the 14th Amendment, which could bar him from again running for political office due to having “engaged in insurrection or rebellion” against the United States.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!,, The War and Peace Report. I’m Amy Goodman.

As we’re reporting, a Georgia grand jury has voted to indict former President Donald Trump and 18 of his allies, stemming from the investigation by Fulton County District Attorney Fani Willis into their attempt to overturn the 2020 Georgia election. This is the fourth time in just over four months a grand jury has indicted Trump. In March, Trump became the first former U.S. president to ever be charged with a crime and was arraigned in New York on 34 felonies related to paying hush money to adult film star Stormy Daniels during the 2016 presidential campaign. Then, June, Donald Trump becomes the first president to face federal criminal charges as a grand jury in Florida indicts him over the mishandling of classified documents after leaving. Then, earlier this month, Donald Trump is indicted on four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, tampering with a witness and conspiracy against the civil rights of citizens, the right of their vote to be counted, the indictment centering on Trump’s efforts to stay in office after Joe Biden defeated him in the November election.

For more, we’re joined by Ralph Nader, longtime consumer advocate, corporate critic, former presidential candidate. His recent piece for Truthdig is headlined “Jack Smith Is One Step Short of the Full Case Against Trump.”

So, first, Ralph, if you could respond to what took place last night just before midnight in Georgia, the significance of these state charges against Trump and 18 others, these RICO charges? And then let’s go back one to Jack Smith and your critique of the charges that he brought.

RALPH NADER: Well, it’s the fourth indictment in just a few weeks of Donald Trump in Georgia. It’s quite a strong case. They have him on record calling the secretary of state to find votes to overturn the state election results in Georgia in the 2020 presidential campaign.

But going back to Jack Smith, we should remember that he could be — that Trump could be convicted on all these counts and still run for president and still get elected for president with a minority of voters, because of the Electoral College atrocity and because the Republicans have succeeded in suppressing so many or intimidating so many voters in swing states. So, the only criminal prohibition that would disqualify Donald Trump from the ballot is Section 3 of the 14th Amendment, called the insurrection section. And it was made into a criminal violation by the federal code a number of years later. And Section 3 is very clear. It categorically disqualifies from public office, at any level of government, any official who, after taking an oath to support the Constitution of the United States, engages in insurrection against it. And the definition of “insurrection” fits Donald Trump’s multiple behaviors. It means seeking, by force, violence or otherwise, to frustrate the ability of the United States to enforce the Constitution and laws. And what is more important than to basically count judicially certified state electoral votes in the U.S. Congress by the vice president, in this case, Mike Pence?

Well, one thing about Trump’s being a serial law violator is that he does it day after day, and he does it overtly. He does it brazenly. Here’s the person who said in July 2019, quote, “Then I have Article 2, where I have the right to do anything I want as president,” end-quote. He later insisted that the Constitution should be, quote, “terminated,” end-quote, by shouts of massive electoral fraud, which was false. He basically told — Trump — on January 6th, “You have to choose between me, Donald Trump, and the Constitution.” So, in addition to all the federal criminal statutes that he’s violated, in addition to obstruction of justice being a way of life in the White House, according to his former special assistant, John Bolton — and obstruction of justice, as we know, is a federal crime — he has flouted the Constitution.

And so, we’re left with Jack Smith bringing three counts, but not bringing the fourth count on insurrection. He has a huge amount of evidence. The House Select Committee to Investigate the January 6th Attack on the U.S. Capitol made a criminal referral to the Justice Department recommending prosecution of Trump for assisting or aiding the January 6th insurrection. Even more specifically, before that, Amy, when Trump was impeached the second time by the House of Representatives, he was impeached for, among other things, inciting insurrection. A majority in the House voted for it. It was sent to the Senate. A majority voted in the Senate 57 to 43, but — with some Republicans, I might add — but it didn’t reach the two-thirds requirement for conviction under the Constitution.

So, the question is: Why did Jack Smith and Merrick Garland omit this? And I’m not sure it was Jack Smith. It could have been Merrick Garland overruling Jack Smith. None of them are talking about why they omitted the insurrection count. And I think a speculation is that they don’t want to go to the next stage and infuriate Trump’s supporters, and, you know, riots in the streets and all. And —

AMY GOODMAN: Ralph, isn’t some of the criticism or the support for not doing insurrection that he wanted an elegant, very simple series of charges that he could — where if — especially if he is the first case that goes to court, where Donald Trump could conceivably have been convicted? And the fact that he only went after Donald Trump himself — I mean, this one is Donald Trump and 18 others, will take much longer. What about that, the issue of the elegance and the simplicity of the charges he brought, that could make it more realizable in the near future, before he could possibly be elected the next president of the United States?

RALPH NADER: We should remember, Amy, that Trump’s lawyers are masters of delay. They already have a Trump nominee for federal court, Judge Aileen Cannon in Florida, putting off the trial until May, after the primaries, 'til May of next year. Already, the trials for Jack Smith are in December, and they can be moved even more. So we're dealing here with awful delay. And we’re dealing with a candidate who can basically create mobs in the streets, threats everywhere, as he runs for office, intimidating members of his own party, as well as other Americans.

So, there’s nothing more elegant than an insurrection account, because the evidence is already there. It’s been brought together in great detail by the House Select Committee on January 6th, and it’s been brought together by the impeachment proceedings by the House of Representatives in 2021.

We should realize here that what Trump is doing is committing assault day by day. When you use the kind of language, violent language, that he uses against individuals, named, in effect, with threats of violence, that is a crime itself. You don’t have to go to battery. Assault is a crime itself, as he did to the two election workers in Georgia.

But he has been escaping the law all his life. I’ve often said he could give a seminar in a law school on how he escaped the law as a corporate executive, he escaped the law as president, and he’s in the process of trying to do it again. He’s violated all kinds of federal criminal statutes when he was the president. He used the White House lawn as an open political campaign site. That violates the criminal statute of the Hatch Act, five-year jail term if you get convicted. He got away with that. He got away with all kinds of obstruction of justice following the Mueller report that came out. He got away with 11 impeachment counts, that Nancy Pelosi didn’t want to bring. She just brought the Ukraine matter, not exactly a kitchen table issue. And, you know, now they’re going to —

AMY GOODMAN: Ralph, let me ask you about what he’s now been charged with. I mean, he has been — so far, in these four cases, in these four indictments, he has been charged for what he did before he was president, while he was president, after he was president. He’s been charged where he used to live, in New York, where he now lives, in Florida, where he worked, in Washington, D.C., and now in Georgia. And I wanted to ask you about this comment in the Times: “As they did in Manhattan, … Trump’s lawyers are likely to argue that the [Georgia] case should be moved to federal court because it concerns acts he took as president and so falls under federal jurisdiction. That argument failed in New York, where the indictment focused on a hush money payment” because it happened before he was president. The significance of this coming out of Georgia, Ralph?

RALPH NADER: The significance of this whole process, delay, constant delay, constant delay, into 2024, before the election, after the election. That’s why the insurrection count is so important. It’s the only one that will prevent him from running for public office. So, we’ve written on Jack Smith a draft letter, which I hope other lawyers will sign, urging him to go back to the grand jury, as he can do, with the approval of Merrick Garland, and add the insurrection account — add the insurrection count —

AMY GOODMAN: A superceding indictment.

RALPH NADER: — to the indictment. Yes. Pardon?

AMY GOODMAN: And what kind of response have you gotten to this?

RALPH NADER: No, this is a draft letter that we’re circulating to get lawyers to come on board.

The real problem here is that Trump is a soliloquist. He attacks everybody, and he knows that the law enforcement people, the prosecutors cannot respond. And all these other groups in our society that he has menaced and undermined and harmed are keeping quiet. Where are the lawyers? Where are the bar associations? Keeping quiet. Where are the labor unions? Keeping quiet. Where are the peace groups? Keeping quiet. Where are the women groups? They should, day after day, rebut him. The children’s protection groups, the environmental groups? Where are the civil rights groups? Once in a while, they speak out, but he’s on the news every day, and he has to be rebutted every day. Things have deteriorated so much in terms of the rule of law, Amy, that in 2005, 2006, the American Bar Association issued three white papers accusing George W. Bush of violating the Constitution during the Iraq War, and now they’re silent, the biggest bar association in the world, who are supposed to be a first responder against the crushing of the rule of law by a president and an ex-president. And they’re silent. So, unless these groups speak out — the religious groups don’t speak out. There’s a reason why they’re not speaking out: because a minority of their membership are fervid Trump supporters, and they don’t want to have that kind of internal turmoil. I was told that by the head of the National Council of Churches a few years ago, said if you —

AMY GOODMAN: We have five seconds, Ralph.

RALPH NADER: Well, five seconds. I want people to get the Capitol Hill Citizen for a donation of $5 or more, to They can get a 40-page, in-print-only newspaper.

AMY GOODMAN: We’re going to have to leave it there. Ralph Nader, former presidential candidate. I’m Amy Goodman. Thanks for joining us.

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