We don’t know what specific charges special counsel Jack Smith will pursue if former President Trump is indicted on allegations of attempting to overturn the 2020 election. We can’t even be certain that there will be an indictment, although it looks imminent after Smith sent Trump a target letter last week.
But thanks to “persons briefed on the matter,” presumably Trump’s leaky lawyers, we know which federal statutes are likely to form the basis of Smith’s case, and they suggest what some of his charges will be.
According to several news organizations, the target letter mentions three laws that would enable Smith to charge Trump with directing a vast conspiracy to undo President Biden’s election by fraudulent means. Alternatively, they would allow Smith to charge the former president with a limited number of improper acts aimed at the same purpose.
I talked with former prosecutors and defense lawyers last week, and they all had similar advice for Smith: Make the case streamlined, focused and clear.
“Go for the simplest charges you can,” former federal prosecutor Paul Rosenzweig said. “Focus on actions that are readily and directly tied to Donald Trump.”
“Keep it simple, stupid,” echoed Norman Eisen, a former defense lawyer who is a fellow at the Brookings Institution. “Don’t try to jam everything in. You don’t want to run the risk of confusing a judge or a jury.”
Trump’s effort to block Biden’s victory included a long list of potentially illegal acts.
The then-president jawboned officials in states he lost to declare him the winner anyway. He asked Georgia’s secretary of state to “find 11,780 votes,” the number he needed to win.
Trump and his allies developed a scheme to submit phony electoral vote certificates to Congress to replace Biden’s real electoral votes.
And he encouraged his supporters to march to the Capitol and “fight like hell” on Jan. 6, 2021, the day Congress was scheduled to certify Biden’s victory.
That’s a lot of potential charges — too many, possibly, for a jury to focus on. Smith’s target letter suggests that he’ll probably settle on a shorter list.
Let’s take the three statutes in turn, beginning with “conspiracy to defraud the United States,” which basically means attempting to interfere with government functions by dishonest means.
Case in point: the bizarre “fake elector” scheme, in which GOP activists in eight states represented themselves as legitimate electors even though Biden had won the most votes. The plot failed, but it was central to Trump’s larger attempt to invalidate Biden’s victory.
It shouldn’t be too hard to convince a jury that the scheme qualified as deliberate fraud.
The activists declared they were their states’ true electors in official-looking statements sent to then-Vice President Mike Pence in his role as presiding officer of the Senate. Those documents may now serve as damning evidence of an attempt to defraud the United States.
Moreover, the chairwoman of the Republican National Committee, Ronna McDaniel, told the House Jan. 6 investigators that Trump had personally asked her to recruit “alternative electors” — evidence that the president was directly involved.
The second statute on Smith’s list prohibits obstructing federal proceedings. That would probably produce charges focusing on Trump’s efforts to block Congress from certifying Biden’s election on Jan. 6, including his relentless pressure on Pence to halt or delay the process.
The Justice Department has charged more than 300 of the Jan. 6 rioters with this offense. Many of the defendants said they invaded the Capitol to try to disrupt the certification; some believed they were acting at Trump’s behest. It only seems fair to subject Trump to the same scrutiny.
“It’s probably a stronger charge against Trump than it is against the rioters,” said Donald B. Ayer, a former top Justice Department official in the George H.W. Bush administration.
The third statute prohibits any conspiracy to deprive people of their constitutional rights, including the right to vote and have their votes counted. It has been used to prosecute officials who tried to rig elections or interfere with vote counting.
In the view of some lawyers, this statute could apply to almost any illegitimate action Trump took to change the outcome of the election. The challenge for Smith will be to confine it to a few easily provable counts.
What’s missing from this list? Inciting to riot or abetting an insurrection.
That’s probably because those charges could be difficult to prove and become distractions in a trial.
“An incitement charge raises 1st Amendment problems,” Ayer said. “And an insurrection charge comes with a lot of complexities, beginning with the definition of ‘insurrection.’”
That suggests that Smith is already doing what the former prosecutors hoped: keeping the case focused on a few charges that could be relatively easy to prove.
“There’s also time pressure at work,” Rosenzweig added. “Part of the incentive to keep it simple is to get it done before the presidential election.”
If the case lands before a judge who wants to move quickly, he said, he “could see this coming to trial next May or June.”
That will be the tail end of next year’s primary election season — and about the same time Trump will be tried over hoarding classified documents at his Mar-a-Lago estate. It’s going to be a busy spring.
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