Trump Indicted for Attempts to "Subvert" the 2020 Election

Special Counsel Jack Smith announced the long-awaited charges today; the indictment is the result of the Department of Justice's more than yearlong investigation into Trump for January 6, 2021.

Photo by ElevenPhotographs on Unsplash

Former President Donald J. Trump has been indicted by a D.C. grand jury on four counts for his alleged role in instigating the Capitol protest on January 6 and related efforts to prevent swing states and Congress from ultimately certifying Joe Biden as the winner of the 2020 presidential election.

Special Counsel Jack Smith—appointed by Attorney General Merrick Garland in November 2022 to take over the Department of Justice’s existing investigation into “whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021”—announced the charges during a brief public statement shortly after 6 p. m. at the Justice Department.

“Today, an indictment was unsealed charging Donald J. Trump with conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding,” Smith said. “The attack on our nation’s Capitol on January 6, 2021 was an unprecedented assault on the seat of American democracy. It is described in the indictment as fueled by lies.”

The case appears to be assigned to Judge Tanya Chutkan, appointed to the D.C. District Court by Barack Obama in 2014.

Trump responded on Truth Social:

The Allegations

“The Defendant lost the 2020 presidential election,” the 45-page indictment began. “Despite having lost, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew they were false. But the Defendant repeatedly and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”

Smith named six unindicted co-conspirators in the indictment—four attorneys, one “political consultant,” and one DOJ officials, presumably former acting assistant attorney general Jeffrey Clark.

Much of the indictment focused on the pressure campaign against former Vice President Michael Pence and the so-called “fake electors” stunt tied to numerous Trump associates including Clark and Trump’s election attorney John Eastman—a description of one of the attorneys named as a co-conspirator appears to Eastman—the author of the controversial memo outlining how Pence could use an alternative slate of electors in contested states to replace Biden electors during the January 6 proceedings. Both men eventually could be named as co-defendants in a superseding indictment.

Fake elector certificates were sent to both Congress and to the archives in some instances. Michigan Attorney General Dana Nessel last month charged 16 constituents with various forgery charges “for their role in the alleged false electors scheme following the 2020 U.S. presidential election,” Nessel said in a press release. “These false documents were then transmitted to the United States Senate and National Archives in a coordinated effort to award the state’s electoral votes to the candidate of their choosing, in place of the candidates actually elected by the people of Michigan.”

The “fake electors” plan also is the subject of Fulton County District Attorney Fani Willis’ ongoing investigation into Trump’s allegedly unlawful attempts to reverse Georgia’s 2020 election results.

“Donald J. Trump did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States—that is, the right to vote, and to have one’s vote counted,” Smith said of the “conspiracy against rights” count.

Obstruction Charge in Legal Limbo

More than 300 Capitol protesters have been charged with obstruction of an official proceeding, DOJs most common felony related to the January 6 investigation. Numerous defendants have been found guilty at trial or accepted plea deals on the felony count, punishable by up to 20 years in prison. (Jacob Chansley is perhaps the most well-known “obstruction” defendant.)

After D.C. District Court Judge Carl Nichols twice dismissed the charge against January 6 defendants—the only judge to do so—DOJ appealed his decision to the Circuit Court. But a “splintered” appellate court ruling issued earlier this year as to the applicability of the 1512(c)(2) statute—part of the 2002 Sarbanes-Oxley Act passed in the wake of the Enron scandal to address tampering with evidence—in January 6 cases provided little clarification.

Judge Florence Pan, appointed to the appellate bench by Joe Biden in March 2021, concluded that “the meaning of the statute is unambiguous.” Writing for the (unclear) majority of the three-judge panel, Pan concluded that “[the] statutory definition of ‘official proceeding’ under 1512(c)(2) includes a ‘proceeding before the Congress.’”

Pan further admitted that “outside of the January 6 cases brought in this jurisdiction, there is no precedent for using 1512(c)(2) to prosecute the type of conduct at issue in this case.”

Judge Justin Walker, responsible for muddying the court’s response, partially agreed with Pan with a caveat related to the definition of the word “corruptly.” But Judge Gregory Katsas strongly disagreed with the appellate court’s interpretation of the statute. “Document destruction readily conjures up images of corporate fraud,” Katsas wrote in his dissent. “Advocacy, lobbying, and protest do not. For that matter, neither does assaulting police officers or rioting in the Capitol.”

Katsas also commented on the novel—in other words, political—use of the law. “1512(c)(2) has been on the books for two decades and charged in thousands of cases—yet until the prosecutions arising from the January 6 riot, it was uniformly treated as an evidence-impairment crime [Until] the January 6 prosecutions, courts had no occasion to consider whether it sweeps more broadly, because all the caselaw had involved conduct plainly intended to hinder the flow of truthful evidence to a proceeding.”

Defense attorneys representing two separate January 6 defendants are seeking relief at the Supreme Court. Appellate attorney Nicholas Smith filed a petition, ironically docketed today, before the high court asking justices to decide whether the statute covers “only acts that affect the integrity or availability of evidence, or whether they criminalize advocacy, lobbying and protest in connection with congressional proceedings that are neither inquiries nor investigations, such as Congress’s joint session to certify the Electoral College vote count.”

Smith further noted that “it appears that the former president of the United States, and candidate in the 2024 presidential election, will be charged under the same Section 1512(c) (2) theory of liability that the government has filed against Petitioner and hundreds of others. the national political salience of the issues raised here.”

How We Got Here

The wide-ranging inquiry into Trump’s role in January 6 began in earnest last year and has involved a lengthy roster of one-time Trump aides and officials; former Vice President Michael Pence, former chief of staff Mark Meadows, longtime advisor Rudy Guiliani, son-in-law Jared Kushner, campaign staffers, several attorneys, and a handful of Secret Service agents are among the individuals who reportedly testified before a D.C. grand jury.

Additionally, nearly 1,100 protesters face criminal charges for their participation in the events of January 6; U.S. Attorney for the District of Columbia Matthew Graves, a Biden appointee, has promised to double that current caseload with new arrests announced each week.

The outcome of those prosecutions provides a useful reference for what Trump and his co-defendants will face in the E. Barrett Prettyman federal courthouse in the nation’s capital as this case moves forward. DOJ enjoys a near-perfect conviction rate in January 6 cases; many defendants choose to accept plea offers from the government rather than take their chances with a jury composed of residents in a city that voted 92 percent for Biden.

Judges universally have rejected change-of-venue defense motions even in high-profile trials such as the Proud Boys and Oath Keepers, arguing that the jury selection process will eliminate biased jurors. (It hasn’t).

Now that the indictment has been filed, the big question is whether Smith will ask the judge to deny Trump’s release pending trial. While admittedly a longshot, case law in January 6 cases gives Smith the grounds to seek pretrial detention for the former president. Further, Smith’s simultaneous prosecution of Trump in the so-called “classified documents” case could bolster his argument that Trump is a threat to national security based on both matters. (Smith also is handling the prosecution of Trump for allegedly mishandling classified documents so far resulting in two criminal indictments against the former president in that matter.)

If Smith does not request pretrial detention, other strict release conditions could be imposed on the former president including home confinement, a curfew, travel restrictions, and the use of a monitoring device.

All in time for the 2024 campaign season.