The indictment brought against former President Trump for trying to halt the transfer of presidential power in 2021 has been met with somber silence from many Republican senators, who view the new charges as more serious than the previous felony counts faced by Trump.
The four new charges unveiled by special counsel Jack Smith on Tuesday focus on Trump’s actions in the lead-up to the Jan. 6, 2021, attack on the U.S. Capitol, which prompted seven Senate Republicans to vote in February 2021 to convict him on the impeachment charge of inciting an insurrection.
Senate Republican aides and strategists say the gravity of the new charges is underscored by the blistering speech Senate Republican Leader Mitch McConnell (R-Ky.) delivered at the end of Trump’s impeachment trial, in which he called Trump “practically and morally responsible” for the chaos of that day and suggested he could face criminal prosecution.
Conservative legal experts are raising concerns about the free speech implications of charging Trump for claiming repeatedly over the course of weeks that the election was marred by fraud and for revving up a large crowd of supporters that then marched on the Capitol.
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But Republican strategists say the latest indictment could have the biggest impact on Trump’s candidacy for president because the American public is well aware of the chaos and violence of Jan. 6.
“It’s politically more salient because of Jan. 6. The whole country knows what happens on Jan. 6. Most of the country watched it unfold on television. Whereas the Mar-a-Lago [documents case], while it may be very serious, it’s not something the average person pays a lot of attention to,” said Vin Weber, a Republican strategist and former member of the House GOP leadership.
“In terms of its political impact, this one is more salient to people, but I’ve also noted that among the conservative legal community, [Tuesday’s] indictment is more controversial on free speech grounds,” he said. “It’s a serious matter but it’s also somewhat debatable.”
A Senate Republican strategist who requested anonymity to discuss Trump’s indictment said the latest charges are the ones he most “deserves,” because Jan. 6 was a direct attack on the nation’s tradition of transferring power peacefully and resulted in injuries to more than 100 Capitol police officers.
“This is the most significant because of what happened on Jan. 6,” the source said.
Two prominent Trump critics in the Senate GOP conference issued statements underscoring what they view as the significance of the new charges.
“In early 2021, I voted to impeach former President Trump based on clear evidence that he attempted to overturn the 2020 election after losing it,” Sen. Lisa Murkowski (R-Alaska) said in a statement responding to the indictment.
“Additional evidence presented since then, including by the January 6 Commission, has only reinforced that the former president played a key role in instigating the riots, resulting in physical violence and desecration of the U.S. Capitol on Jan. 6, 2021,” she said.
Sen. Lisa Murkowski (R-Alaska) asks a question during a Senate Appropriations subcommittee in Washington. (AP Photo/Mariam Zuhaib, File)
Murkowski was one of seven Republican senators who voted to convict Trump on the charge of inciting an insurrection against the U.S. government.
Of that group, only Murkowski, Sen. Mitt Romney (R-Utah), Sen. Susan Collins (R-Maine) and Sen. Bill Cassidy (R-La.) still serve in Congress.
Romney blamed Trump for inciting an insurrection on the very day of the attack against the Capitol and stood firm in response to Smith charging Trump with conspiring to defraud the United States, obstructing the vote certification proceedings and conspiring to violate civil rights.
“My views on the former president’s actions surrounding Jan. 6 are well known. As with all criminal defendants, he is entitled to due process and the presumption of innocence,” Romney said in a statement.
Darrell West, a senior fellow at the Brookings Institution who has written about Trump’s efforts to hold onto power, said the latest indictment puts many Senate Republicans and moderate GOP House members in a tough position.
“It puts Republicans who are defending Trump in the stance of opposing democracy. The indictment outlines fundamental threats to democracy on the part of Trump, and so it really puts the GOP in a very difficult political stance,” he said.
Senate Republicans have had an easier time dismissing the charges against Trump for mishandling classified documents at his residence at Mar-a-Lago because investigators have also retrieved classified documents from President Biden’s personal office in Washington and his home in Wilmington, Del. He kept the documents after leaving the vice president’s office at the end of the Obama administration. Biden has cooperated with the Justice Department in returning them.
Sen. Marco Rubio (R-Fla.), the vice chairman of the Senate Intelligence Committee, has shrugged off the charges against Trump over holding classified information as a “storage” issue.
West pointed out that Smith, the special prosecutor, said Tuesday he wants a “speedy trial,” which raises the possibility that a jury may render a verdict on Trump’s actions before the 2024 election.
“It could be the most ominous” of the charges, he said, because “there could be a verdict before the election.”
Sen. Marco Rubio (R-Fla.) speaks to a reporter as he arrives to the Senate Chamber for a vote on Tuesday, July 25, 2023.
McConnell has remained silent on the latest round of federal charges against Trump, in contrast to Speaker Kevin McCarthy (R-Calif.), who quickly rallied to Trump’s defense after the charges became public.
McConnell told reporters last month that he wouldn’t have anything to say about Trump if he was indicted for his actions in the lead-up to Jan. 6.
Asked on July 19 whether it would be legitimate to charge Trump for trying to stop the certification of the 2020 election, McConnell replied: “I’ve said every week out here that I’m not going to comment on the various candidates for the presidency.”
Referring to his view of Trump’s culpability for inciting the violence on Jan. 6, McConnell said: “How I felt about that I expressed that at the time, but I’m not going to start getting into sort of critiquing the various candidates for president.”
McConnell was unequivocal two years ago in blaming Trump for inciting the Jan. 6 riot and suggested at the time that he could face criminal charges.
Senate Minority Leader Mitch McConnell, R-Ky., center, returns to his press conference after the 81-year-old GOP leader froze at the microphones and became disoriented, at the Capitol in Washington, Wednesday, July 26, 2023. (AP Photo/J. Scott Applewhite)
He warned that Trump “didn’t get away with anything yet,” adding: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”
McConnell’s top deputy, Senate Republican Whip John Thune (S.D.), didn’t say anything either about the newest charges.
The highest-ranking member of the Senate GOP leadership to come to Trump’s defense was Senate Republican Conference Chairman John Barrasso (R-Wyo.).
“The American people have lost faith in Biden’s Justice Department. They are uncomfortable watching the current president weaponize the justice system against his political opponent,” he said in a statement his office provided to The Hill.
–Updated at 7:28 a.m.