Whether you like or dislike Donald Trump, the legal and political atmospheres surrounding his recent indictments present some very unsettling consequences. In effect, voter fraud is now legally protected from legitimate scrutiny and free from any fear of reprisal. Freedom of speech no longer extends to the questioning of election security issues. And we cannot deny the very clear message these indictments have sent that political dissidents in America will be silenced by fear of prosecution. But do not be dismayed. None of this can stand against the power of prayer!

Join others crying out to the Lord day and night.

View Comments (98)

A cursory look at these criminal charges in four jurisdictions certainly suggests that our freedom of speech may be gone. And again, whatever one’s opinions about former President Trump, this visibly mounting weaponization of our government and its agencies against dissenting political views is a cause of concern for every American. The lack of legitimacy behind this multitude of charges spells disaster for both the rule of law and the freedom of speech.

A Manhattan district attorney bizarrely combined a state misdemeanor charge of falsifying business records and some allegations involving noncompliance with federal election laws, to obtain felony indictments. The dots connecting these allegations to create that fanciful scenario are numerous and very loosely configured. But this doesn’t appear to matter in a Machiavellian the-ends-justify-the-means society. And please don’t muddy these already murky waters by asking the common-sense question of exactly how a Manhattan DA even possesses the authority to try federal issues.

And let’s look at the traditionally “secure and reliable” FBI. Surely, there could be no miscarriage of justice there. Right? But when news broke of the FBI raid on the former president’s home at Mar-a-Lago, it evoked the sense of Dorothy informing Toto: “We’re not in Kansas anymore!” Exactly what nation are we living in when the sanctity of a former president’s home can be invaded in such a manner?

All of this raises questions about presidential privilege with regard to retention of confidential documents. Before we go too deeply down the rabbit hole of complexity concerning privilege for former versus incumbent presidents and for executive application on state secrets, presidential communications, or deliberative communications within agencies, let’s pause. Joe Biden as vice president, Mike Pence as vice president, and Hillary Clinton as secretary of state all took with them, and ended up in possession of, confidential government documents. None of them could even arguably use the presidential privilege defense, and yet none of them incurred felony indictments. Of course, left-leaning media outlets will assert that these other offenders made no effort to retain the confidential documents they possessed. Ah, yes, of course! — Clinton never attempted to retain such documents; no, she merely destroyed them, allegedly, and that is so much better.

Justice and Righteousness Denied in the District

Now consider Georgia, where we once again encounter a highly “motivated” district attorney. What’s the deal with all these zealous district attorneys? If one did not know better, one might start wondering whether someone had strategically financed the election of liberal DAs nationwide. Sound familiar?

So, what are the allegedly serious criminal offenses that merit numerous felony indictments against Trump? His communicating concerns about the potential for voter fraud and the issues of election integrity. Stop and think about that for a second: The criminal action was speech — speech about concerns over election tampering.

To set about silencing such concerns through the threat of criminal indictment is tantamount to reestablishing England’s circa-16th-century Star Chamber — where political dissidents could be tried for seditious libel or slander. In short, these Trump indictments return us to times before the solidification of our First Amendment freedoms of speech and of the press. Apparently, these rights are no longer to be viewed as unalienable and inviolable. Such indictments essentially shove us all the way back to the days in England during which enemies of the Crown could literally be tried and arbitrarily sentenced for daring to so much as question the proclamations of the king.

Going on to D.C. and the indictments surrounding January 6, we must intentionally step away from the emotional cloud of chaos in order to gain a higher, clearer perspective of what is at play. Common sense dictates that to accurately ascertain motive and thereby intent, we must first determine who ultimately benefited from that day’s events. Isolating those benefactors should be easy, since an undeniably select few could arguably have benefited from the chaos of January 6 — and it was clearly not the American people.

The D.C. grand jury indictments are for alleged attempts to overturn an election. What is interesting to note is that instances of extremely contentious presidential elections in America are hardly unique to 2020; there have been several throughout our history. This one, however, is the first to elevate allegations of voter fraud by a presidential candidate to the level of a criminal conspiracy to defraud the United States.

We’ve Seen All This Before

We do not have to go back very far in our history to recall the 2000 electoral battle between George W. Bush and Al Gore. Many today still allege that Bush stole the election from Gore, and they evidence the same frustrations, ire, and lack of acceptance of the legitimacy of election certification. And the list of heated races and outcomes goes on. The process detailed in the Electoral Count Act (ECA) of 1887 resulted from the presidential election of 1876, another very contentious, close, and heatedly questioned presidential certification.

The criminal allegations birthed from the questioned results of the 2020 election in several states, including those in Georgia, even went as far as the need to certify alternate slates of electors for the final count. This is the exact same scenario as that of the 1876 election; that election, however, was finally settled through an appointed 15-person commission.

The process detailed in the ECA of 1887, though criticized by some as unclear and archaic, is in fact simple and uncharacteristically clear, for a federal law. It established a systematic process for addressing election disputes and allegations of voter fraud. For any objection to be heard, it must first obtain a sponsor in both legislative chambers. Then the objection may be debated, allowing each member of each chamber up to five minutes, followed by a vote, which must pass both chambers. This is all to be done in addressing the validity and certification of each state.

Who Benefits?

This process is neither difficult nor confusing, and it would have served to provide legitimacy to any residual questions surrounding proper elector certification. The ultimate outcome of the frenzied chaos of January 6 was to bypass the legal requirements of the ECA and summarily declare the finality of the election, on Jan. 7, 2023 — thereby giving an answer to our question of who benefited from the chaos of January 6: It was Joe Biden, not Donald Trump. The failure of Congress to follow established legal process was unfortunate not only for the American people and Donald Trump, but even for Joe Biden, because it begs the logical question of why, in fact, it was not allowed to proceed.

We may make assumptions, but America will never know the results of the votes on each properly presented objection to the certification of state electors. Conversely, while many may still discount the legality of the Supreme Court’s decision in Bush v. Gore, there was at least some final legal determination upon which the nation could rest. The price we pay for not following established legal process is an America in which politicization and mere whim and caprice are presumed to reign supreme.

Looking holistically at all of the above, what emerges is the unresolved concerns over voter fraud and election integrity. Those concerns may be off the table, given that such discussions now seem to be “indictable.” But really, don’t all Americans deserve to know that our elections are in fact safe, and that our votes do in fact count? Should anyone in America rejoice at the idea that such questions, concerns, or allegations can now be grounds for criminal prosecution? Again, the clear victims of these indictments go way beyond Donald Trump or his allies. The real and obvious victims are the rule of law, our First Amendment right to free speech, and the American people themselves.

Please share this IFA exclusive analysis with a friend.

Cynthia Dunbar is an attorney, an author, a constitutional scholar, a professor of government, a former law professor, and an IFA board member. She is co-host with Dave Kubal of IFA’s Constitutional Corner. Visit Freedom Focus to view Cynthia’s video shorts, or click here to arrange a speaking engagement for your next event. Photo by Jeff Swensen/Getty Images.