Fraud is a high crime and misdemeanor. It should be, anyway.
The elements of common law fraud are a false representation of material fact, knowledge of that falsity or reckless disregard for whether it is true, an intent to induce reliance on the false representation, reasonable reliance on the representation, and resulting damage. For 77 days, Donald Trump perpetrated a fraud on a large segment of the American people. He repeatedly misrepresented the facts concerning the election – falsely claiming that he won, and falsely claiming that various forms of ballot irregularities caused his declared loss. He knew these claims were false, but he intended his supporters to believe him.
And believe him they did. Even before the Capitol riot on Jan. 6, “stop the steal” rallies were taking place around the country. Trump’s false claims of a rigged election rang through conservative media and echoed across social media platforms. Polls showed that half of registered Republicans believed the election had been stolen by Joe Biden. It all culminated in the insurrection at the Capitol, where an angry mob of the misled stormed the Capitol in an attempt to prevent Congress from certifying the true result of the presidential election.
While Trump will be tried in the Senate on an impeachment charge of inciting insurrection, the riot at the Capitol was not Trump’s core crime. Yes, he encouraged violence with irresponsible rhetoric on the morning of the mayhem, and yes, he should have known that his words would likely lead to violent protest. But it misses the main point to focus on the words he and his co-conspirators used that morning to incite the violence. The more important point is that for weeks before Jan. 6, Trump engaged in fraud, and that fraud is what led to the violent insurrection.
The violent invasion of the Capitol was the end result of Trump’s long-running scheme to mislead his supporters. The underlying crime was fraud, plain and simple: knowing lies, made with the intent to deceive, which actually did deceive an unfortunately large group of disgruntled losers (“losers” in the sense of having lost the election, at least).
In analogous contexts, it is easy to see why conviction and punishment are warranted. If Trump had been hyping an initial public offering of shares of a publicly traded company called Stop the Steal, Inc., he would be convicted of securities fraud. If he had an insurance policy against rigged elections and made a claim based on the lies he told the American people, he would go to prison for insurance fraud.
Why should the result be any different here? Trump perpetrated a fraud on the American public, resulting in substantial damage and death. That is a high crime and misdemeanor warranting conviction by Senate Republicans. If only they hadn’t engaged in fraud when swearing their oaths to do impartial justice according to the Constitution and laws.