Donald J. Trump has again been indicted by Special Counsel Jack Smith, this time relating to efforts to challenge the 2020 election. For the first time in American history, a former American president is being indicted for his conduct while in office. The political conduct of then-President Trump has been criminalized. And Special Counsel Smith prosecutes these political acts with novel, if not dubious, legal theories.
In total, Trump faces 4 counts: Conspiracy to Defraud the United States; Conspiracy to Obstruct an Official Proceeding; Obstruction of, and Attempting to Obstruct, an Official Proceeding; and Conspiracy Against Civil Rights. Read the indictment here.
Special Counsel Smith goes to great lengths to unsuccessfully try to paint the indictment as not touching upon Trump’s right to speak publicly about the 2020 election or to contest the election results. Those efforts are unpersuasive for the reasons we’ll address below.
In total, Special Counsel Smith alleges Trump took part in “three criminal conspiracies”:
- A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government;
- A conspiracy to obstruct and impede the January 6 congressional proceeding at which the collected results are counted and certified (“the certification proceeding”); and
- A conspiracy against the right to vote and to have one’s vote counted.
Here are the alleged facts and statutory violations against Trump – which are each addressed with specificity.
Factual Allegations:
Special Counsel Smith alleges Trump, along with six unnamed and unindicted (at least for the time being) co-conspirators, undertook” criminal efforts to overturn the legitimate results of the 2020 election and retain power.” The “manner” of this alleged conspiracy consisted of Trump pushing “officials in certain states to ignore the popular vote” and use “knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results.” This included the use of alleged “fraudulent slates of electors” in a number of states: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin.
It is also alleged that Trump, “using knowingly false claims of election fraud,” tried to convince Vice President Pence to “fraudulently alter the election results.” On that point of Trump making “knowing” false claims (an important point to be discussed below), Special Counsel Smith maintains that leadership at the DOJ, Director of National Intelligence, DHS, as well as senior White House attorneys, Trump campaign staffers, and a number of state legislators and officials, all informed Trump that the evidence of election fraud was “unsubstantiated” or “unsupported” or “false”. Special Counsel Smith further alleges that Trump “knew” the allegations of election fraud were “false” because he had been informed of this “falsehood” by various state attorney generals – many of whom, like those in Michigan, oversaw elections with substantial security deficiencies and the violations of Equal Protection rights (see Detroit).
The indictment – really, a speaking indictment – is long on the factual allegations that relate to all counts, detailing the state-specific efforts by Trump, et al., to challenge the 2020 election. It also describes Trump’s post-election interactions with VP Pence and Trump’s attempts to persuade VP Pence that he had the right to “reject or send to the states Biden’s legitimate electoral votes, rather than count them.” The indictment makes a point to include Trump’s tweets about VP Pence’s power to “reject fraudulently chose electors.” And it alleges Trump gave the January 6 crowd “false hope that the Vice President might change the election outcome.”
The Law: