Background

In the past several months Donald Trump has been indicted twice—once in New York state court for lies to cover up hush money payments intended to influence the outcome of the 2016 election and once in Florida federal court for national security and obstruction offenses in connection with the possession of nearly 300 classified documents. However, he has not yet faced any criminal accountability for his efforts to overturn the 2020 presidential election. That is likely about to change.

The Justice Department has been investigating Donald Trump’s attempts to stop the lawful transition of presidential power following the 2020 election, including efforts to recruit fake electors, intimidate state and federal officials and interfere with the congressional proceedings on January 6th which resulted in the attack on the U.S. Capitol. 

In November 2022, Attorney General Merrick Garland appointed Special Counsel Jack Smith to oversee the investigation. As part of its investigation, a grand jury has heard from more than a dozen witnesses, issued dozens of subpoenas for witnesses and information and seized multiple cell phones of former Trump officials, allies, and campaign staff.  Most recently, former Vice President Mike Pence and former White House Chief of Staff Mark Meadows both testified before the grand jury, raising speculation that a federal indictment for Trump’s role in the January 6th attack may be imminent. 

Although Fulton County District Attorney Fani Willis’ investigation into Donald Trump’s attempts to overturn the election results in the state of Georgia is ongoing with charges expected soon, these would be the first federal charges related to Trump’s efforts to upend democracy and overturn the 2020 presidential election. To date, more than 1,000 people have been arrested for their roles in the January 6th attack on the Capitol, and nearly 700 defendants have pleaded guilty or been convicted.

The factual background of how Donald Trump tried to overturn the election is extensive and has been documented by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol in their final report. This analysis is not intended to rehash that voluminous evidence. Instead, it provides a brief overview of the possible charges that federal prosecutors may bring against Trump for his role in trying to overturn the 2020 presidential election, as well as a discussion of some of the near-term legal issues and potential defenses that a federal indictment may raise. 

Possible charges 

1. Conspiracy to defraud the United States (18 USC § 371)

18 U.S.C 371 makes it a crime to conspire with another person to defraud the government. Conviction requires a prosecutor to prove that (1) there was a conspiracy; (2) that the conspirator had the specific intent to obstruct a lawful function of government; (3) that the conspiracy defrauded the government; and (4) that at least one overt act was committed in furtherance of the conspiracy. Violating section 371 is a felony, punishable by up to five years in prison. 

A conspiracy exists when two or more individuals agree, implicitly or explicitly, to commit an unlawful act, regardless of whether their actions are successful. There is compelling evidence that Trump conspired with several lawyers, supporters, and aides including Trump lawyers John Eastman and Rudy Guiliani, DOJ attorney Jeffrey Clark and White House Chief of Staff Mark Meadows, and that their specific intent in doing so was to overturn the 2020 presidential election results. Together they wrote memos outlining a plan to persuade Pence to throw out the 2020 election results and submit false slates of electoral college votes to be counted at the January 6th joint session of Congress, an event which is a lawful government function within the meaning of section 371. Further, as the factual record compiled by the Select Committee shows, Trump overtly attempted to interfere with the DOJ’s election enforcement work by trying to install Jeffrey Clark as acting attorney general and to have the DOJ send a letter to Georgia’s Secretary of State requesting the Secretary “start the process of decertifying the election” despite there being no evidence of significant fraud. 

The conspiracy to unlawfully overturn the 2020 presidential election results was an attempt to defraud the government within the meaning of the statute. A person defrauds the government for purposes of the statute when they engage in deceptive and dishonest conduct, such as Trump’s scheme to interfere with Congress’ electoral count by submitting false certificates on January 6th, along with Trump’s attempt to pressure Pence to reject lawful electoral certificates from seven battleground states despite knowing that there was no large-scale electoral fraud, with the goal of denying Joe Biden the electoral majority he legitimately won in a free and fair election. 

Lastly, as the Select Committee detailed in their final report, several overt steps were taken in furtherance of this conspiracy—a conspiracy that ended with the U.S. Capitol being overtaken and the congressional proceedings suspended for the first time in American history. These overt acts include, but certainly are not limited to, organizing false slates of electors, discussions with National Security Advisor Robert O’Brien about attempting to seize voting machines, and direct pleas to the Vice President to reject electors or delay certification.

2. Obstruction of an official proceeding (18 USC § 1512(c))

Section 1512(c) makes it illegal to corruptly obstruct, influence, or impede—or attempt to do so—an official proceeding. Violating Section 1512(c) is a felony, punishable by fine, imprisonment of not more than 20 years, or both. Obstruction of an official proceeding is among the most widely used felony charges in January 6th cases. To date, more than 295 people have been charged with obstruction of an official proceeding in connection with the attack on the U.S. Capitol, and roughly 150 participants have been convicted, including members of the Proud Boys and Oath Keepers, with more awaiting trial. 

Official proceedings are broadly interpreted to include any proceeding that is authorized by law, before Congress, or conducted by a federal agency or department. As such, the January 6th joint session of Congress in which electoral votes were certified and Joe Biden was confirmed as the winner of the 2020 presidential election was unmistakably an official proceeding within the meaning of the statute.

To successfully convict under 1512 (c), the prosecution must demonstrate that the defendant acted “corruptly” including acting with an improper purpose and with a “specific intent” to obstruct, impede or influence a proceeding. Moreover, there must be a nexus, establishing a clear connection, between the obstructive conduct and the official proceeding. 

Trump and his allies’ obstructive conduct specifically intended to and was laser focused on obstructing the January 6th joint session of Congress. Trump was repeatedly told that he lost a safe and secure election. He then pressured, publicly and privately, then-Vice President Pence to throw out electoral certificates on January 6th. Fueled by his desire to remain in power, Trump and his associates also conspired to create and transmit false electoral certificates, intending to show that Trump won in states where Biden had been declared the lawful winner. When those measures failed, he summoned his supporters to “stop the steal” on the day that Congress was meeting to certify electoral results, directing them to “fight like hell” and “if you don’t fight like hell, you’re not going to have a country anymore.”

3. False statements (18 U.S.C. 1001)

Section 1001 of Title 18 makes it a crime for someone to make a wilfully false written or oral statement about a material fact to a federal investigator or agency. To convict under Section 1001, the government must prove that the individual knowingly and willfully caused the false statements to be submitted. Importantly, the government does not need to prove that the defendant himself made the statement, only that they caused it to be made. Violation of this statute carries a penalty of a fine and up to five years in prison. 

Trump and his allies’ orchestrated plan to create false slates of electors and submit them to Congress and the National Archives likely violated 18 USC 1001 because Trump, with help from members of his inner circle, procured false written statements from would-be electors in states that he lost dishonestly claiming to have been legitimately elected. There is overwhelming evidence that these false statements were made wilfully because the false electors knew they were not legitimately elected and were even given directions from the Trump campaign to sign the certificates covertly. 

Crucially, to successfully convict, the prosecutors will need to prove that these forged certificates were “used” within the meaning of 18 U.S.C. § 1001. This can be established because they were mailed and received by the National Archives and Congress.

4. Insurrection and giving aid or comfort to insurrectionists (18 U.S.C. § 2383)

One of the most serious charges Trump could face, Section 18 U.S.C. 2383 criminalizes anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.” It is a felony punishable by imprisonment for up to ten years, fines, or both.

To successfully convict Trump for this criminal charge, prosecutors must prove beyond a reasonable doubt: (1) that the January 6 attack on the U.S. Capitol was an “insurrection”; (2) that Trump “incited,” “assisted,” or “engaged” in the insurrection, or gave “aid or comfort” to those that did; and (3) that the insurrection was against the authority or laws of the United States.

Proving the first and third elements of the offense is relatively straightforward. The January 6 attack has been widely recognized as an insurrection by all three branches of government including by Trump’s Department of Justice in legal filings and by more than a dozen federal judges appointed by Democratic and Republican presidents alike. Moreover, it is difficult to conceive of an argument that the attack against the Capitol was not “against the authority of the United States or the laws thereof” within the meaning of the statute because the insurrection interrupted the joint session of Congress as it was counting the electoral college votes as required under the 12th Amendment and Electoral Count Act. 

The question then becomes whether Trump incited, assisted, or engaged in the insurrection, or gave aid or comfort to those that did. Although a prosecutor would only have to prove beyond a reasonable doubt that Trump did one of these things, we think the evidence establishes that he incited, assisted and engaged in the insurrection. Under Section 2383,  an individual need not personally commit violent acts in order to engage or assist in insurrection; rather, non-violent overt acts or words in furtherance of the insurrection are sufficient. As for incitement, the evidence suggests that Trump’s words meet the standard under the Supreme Court’s decision in Brandenburg v. Ohio because his speech not only encouraged but intended the imminent use of violence or lawless action, namely, the use of force to disrupt the joint session of Congress. Importantly, U.S. District Court Judge Mehta seemingly agreed with this analysis when, in Thompson v. Trump, he concluded that Trump’s words on January 6th were “plausibly words of incitement not protected by the First Amendment.”

While we recognize that prosecutors might be hesitant to bring a Section 2383 charge because there is a lack of modern precedents for incitement prosecutions, we believe that, based on the facts, prosecutors can prove beyond a reasonable doubt that Trump incited, assisted, and engaged in insurrection in violation of criminal law.

5. Conspiracy against rights (18 U.S.C. § 241)

Enacted after the Civil War for federal prosecutors to pursue criminal charges against Ku Klux Klan members who engaged in terrorism to prevent formerly enslaved African Americans from voting, Section 241 makes it unlawful for two or more people to agree to injure, threaten, or intimidate someone in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States. It seems likely that Trump violated this statute. 

Both the first and third elements of the charge are relatively straightforward when applying Section 241 to Donald Trump’s conduct. As a starting point, the right to vote for federal office and the right to have one’s vote fairly counted are among the rights secured by Article I, Sections 2 and 4, of the Constitution, and thus, are protected under Section 241. Moreover, Trump and his associates clearly entered into an agreement within the meaning of the statute as shown by the totality of their words and conduct, including the joint memos that were written, the joint steps taken to pressure state and federal officials, and  the coordinated campaign that attempted to prevent states from counting legal ballots. 

The crucial question then becomes whether prosecutors can prove beyond a reasonable doubt that the ultimate goal of that agreement was to deprive citizens of their constitutional right to vote. In Prichard v. United States the U.S. Circuit Court of Appeals for the Sixth Circuit noted, in the context of Section 241, that the right to vote “is a right possessed by each voting elector, and to the extent that the importance of his vote is nullified, wholly or in part, he has been injured in the free exercise of a right or privilege secured to him by the laws and Constitution of the United States.” In 1974, in Anderson v. United States, Justice Thurgood Marshall cited that decision upholding the use of Section 241 to charge West Virginians who cast fake votes on a voting machine, stating that every voter “has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes.” The conduct of Trump and his associates seems to fall squarely within Anderson. Trump developed a scheme with the specific intent to have fraudulent votes counted and thereby dilute and overturn Biden’s win, and the fair value of the votes cast by millions of Americans for him, in several states.  The scheme includes a recorded phone conversation where Trump attempted to “intimidate” Georgia’s secretary of state to “find” enough votes to strip President Joe Biden of his win in Georgia, and a plan to use fake electors in seven states that Trump lost. If Trump’s plan had been successful, it would have resulted in millions of legitimate votes not being fairly counted. 

6. Wire fraud (18 U.S.C. 1343)

Criminal wire fraud under section 1343 covers an incredibly broad range of activity, namely, any scheme to defraud or obtain money or property by using  some form of electronic communication (e.g. wire, radio, television, internet) in interstate or foreign commerce. Violation of this code includes a maximum penalty of up to 20 years in prison and large fines. 

Knowing that Trump had lost the presidential election, the Trump campaign sent emails to donors soliciting donations for the Save America PAC to support Trump’s election defense fund and “stop the steal” efforts. Trump and his allies alleged in their email solicitations that they needed the money to fight election fraud and reverse the outcome of the election, despite knowing there was no evidence to support their claims of widespread electoral fraud. These efforts acquired property within the meaning of section 1343, namely the over $250 million dollars raised for Trump’s Save America PAC. 

It was later revealed by the January 6th committee that Trump didn’t use the more than $250 million dollars he raised for so-called election defense, but instead used the money for personal expenses, including a $1 million donation to the  Conservative Partnership Institute, where former White House chief of staff Mark Meadows is senior partner.

As a final part of the case of violation of section 1343, prosecutors will need to prove beyond a reasonable doubt that Trump intended to defraud his donors. Prosecutors may be able to use the available evidence they have showing that Trump knew that his election fraud claims were untrue yet sent these emails anyway to establish an intent to defraud. 

Legal issues 

Challenging the constitutionality of the Special Counsel regulations

Department of Justice rules allow the Attorney General to appoint a person from outside the federal government to conduct investigations or prosecutions that may present a conflict of interest or are politically sensitive. Special counsels are often used to determine if elected officials or political candidates violated the law, due to the political sensitivity of these cases. 

Despite this recognized legal authority, Trump’s lawyers are likely to argue that Special Counsel Jack Smith’s appointment violates the Appointments Clause of the Constitution—an argument that has been raised in the past, including to delegitimize former Special Counsel Robert Mueller’s investigation into 2016 election interference. 

This argument is flawed. Since 1999, the Department of Justice has had regulations in place that provide for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney,” and are not subjected to constant supervision by the Justice Department;  Jack Smith was appointed pursuant to this authority. In 2019, the U.S. Court of Appeals for the District of Columbia in In re Grand Jury Investigation upheld the special counsel regulations, concluding that a special counsel is an inferior officer under the U.S. Constitution and therefore does not require Senate approval.

Immunity

Trump will likely rely on the Supreme Court decision in Nixon v. Fitzgerald to contend that he is absolutely immune from criminal liability for acts committed in the course of performing his presidential duties. This argument however has already been rejected by the courts and is a misreading of Nixon which held that presidents (including former presidents) are immune from civil liability for acts committed in the course of their official duties. Nixon did not create an immunity from criminal liability. Moreover, Trump’s role in the coordinated scheme that led to the insurrection—including his role in endorsing the creation of false electoral slates, and pressuring state and federal officials to overturn the election results were in no way official duties, as the president has no constitutional or legal role to play in the counting and certification of electoral college results.  

The issue of intent

Trump’s lawyers have argued and likely will continue to argue that Trump had no intention of sparking violence on January 6th and therefore lacked the requisite criminal intent to be charged and convicted of crimes related to efforts to overturn the 2020 presidential election. This argument is a fundamental misreading of the relevant statutes.

None of the statutes referenced above require showing that the defendant intended to cause violence. 18 USC 371 requires showing that Trump had the specific intent to commit an offense against the United States while 18 USC 1512 requires showing that Trump had the specific intent to obstruct or impede an official proceeding. Trump was told repeatedly by a number of his closest advisors—as well as outside consulting firms—that he had lost the election and that the narrative of election fraud was not substantiated. Yet, the memo authored by John Eastman extensively outlines the efforts Trump and his allies planned to take to prevent the certification of Biden’s presidential victory, including pressuring former Vice President Pence to refuse to certify several states’ electoral college votes, along with creating fake elector slates. When that failed, Trump summoned a mob to “march to the Capitol” and “fight like hell.” This demonstrates a specific intent to subvert the certification of the election by Congress on January 6th.

Moreover, 18 USC 1343 requires an intent to defraud—not an intent to commit violence. There is overwhelming evidence to indicate that, in several instances, Trump misled the American people regarding the legitimate election outcome, including demanding that his supporters go to the Capitol in an attempt to overturn a lawful presidential election. Prosecutors can use his desire to nonetheless pedal conspiracy theories to solicit campaign donations to prove, beyond a reasonable doubt, his intent to defraud his supporters. 

First Amendment

Although Trump is likely to argue that his speech in the aftermath of the 2020 election, including his claims of election fraud, are protected under the First Amendment, that argument misunderstands the law. It is well established law that “speech integral to criminal conduct,” including speech advising how to commit a crime or speech that amounts to an agreement to commit a crime, has no First Amendment protection. Therefore, Trump cannot successfully argue that his campaign to pressure Pence to overturn the election or his efforts to pressure state and federal lawmakers to break the law receive any First Amendment protection.

Pardon

The U.S. Constitution gives the president broad power to pardon federal crimes, except in cases involving impeachment and for state offenses. Trump has vowed that if reelected, he would pardon those convicted of crimes related to January 6, and questions have been raised about whether or not he can issue a self-pardon. While no sitting president has ever attempted to self-pardon before, the Justice Department’s Office of Legal Counsel opined in 1974—during Richard Nixon’s presidency—that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Nonetheless, if re-elected, Trump may  try to self-pardon if he is convicted in federal court. However, it is important to remember that convictions for state crimes are beyond the president’s pardon power. That is among the reasons why legal observers remain interested in District Attorney Fani Willis’ investigation in Fulton County, Georgia into Trump’s attempts to overturn the election in that state. 

Timing considerations & prosecutorial deference

Decisions on whether to pursue federal charges against Trump and his allies in connection with the January 6th attack on the Capitol could come as soon as this summer. 

Fulton County District Attorney Fani Willis, who has been overseeing a separate special grand jury investigation into Trump’s attempt to interfere with the 2020 election in Georgia, announced plans to make final charging decisions in her investigation sometime between July 11 and September 1. Strategically, it may make sense for Smith to bring federal charges first, to minimize the risk of a conflicting indictment in Georgia.  Moreover, if the Georgia indictment is issued first, the Special Counsel may have to obtain department approval to waive an internal DOJ rule that precludes “multiple prosecutions and punishments for substantially the same act(s).”

Indictment over the summer would also allow the possibility of the case being tried within a year and before the July 2024 Republican National Convention. Department of Justice regulations state that, “Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charge, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” Because of this, by policy, the Department of Justice adheres to the so-called “60 Day Rule,” wherein it avoids taking public investigatory steps close to an election so as to avoid influencing how people vote. For these reasons, if Special Counsel Smith is to charge Trump with crimes related to his efforts to overturn the 2020 election, he likely will do so relatively soon.  

Photo by Tyler Merbler under a Creative Commons license.