Trump Indicted for Third Time for Efforts to Overturn Results of 2020 Election

Special Counsel Jack Smith charged Trump with four federal crimes in connection with efforts undertaken by him and six co-conspirators to overturn the results of the 2020 election.

Summary

Former President Donald Trump was indicted for the third time in four months on Tuesday. Special Counsel Jack Smith charged Trump with four federal crimes in connection with efforts undertaken by him and six co-conspirators to overturn the results of the 2020 election.

• The indictment in U.S. v. Trump charges Trump with four felonies: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights.
• The charges against Trump carry penalties with maximum sentences ranging from five for the conspiracy against rights count to twenty years in prison for the two obstruction counts.
• The indictment makes the case that Trump knew at the time that he had lost in the election and then “spread lies that there had been outcome-determinative fraud in the election and that he had actually won.” Proving Trump’s intent will be essential for Smith to secure a conviction.
• During the post-election period, Trump is alleged to have engaged in a multi-pronged conspiracy to overturn his defeat to Joe Biden in the 2020 election.
  • Trump and his allies first allegedly tried to pressure state lawmakers and officials to change the results of their electoral votes before organizing a series of alternative pro-Trump electors should those efforts have succeeded.
  • Additionally, Trump and his co-conspirators allegedly tried to use the Justice Department to support this scheme by conducting meritless election-fraud probes in swing states.
  • Then, he and his supporters tried to pressure Vice President Mike Pence to reject Biden’s electoral votes.
  • The final plot detailed in the indictment were Trump’s alleged efforts to exploit the Jan. 6 Capitol riot to pressure members of Congress into delaying the certification of the Electoral College.
• Smith tried to make a distinction between Trump’s free speech rights and where he may have strayed into criminality at the beginning of the indictment: “The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures.”
• Six unnamed co-conspirators were mentioned in the indictment, although they have not been charged and Smith said the investigation is ongoing. Media reports have identified five of the six:
  • Rudy Giuliani (co-conspirator 1): the former New York mayor “was willing to spread knowingly false claims and pursue strategies” that other Trump lawyers would not.
  • John Eastman (co-conspirator 2): a lawyer who “devised and attempted to implement a strategy to leverage” Vice President Mike Pence’s ceremonial role on Jan. 6 to block the counting of Biden’s electoral votes.
  • Sidney Powell (co-conspirator 3): an attorney who made “unfounded claims of election fraud” that even Trump called “crazy” behind closed doors.
  • Jeffrey Clark (co-conspirator 4): A high-ranking Justice Department official who tried to “open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.”
  • Kenneth Chesbro (co-conspirator 5): a Trump campaign aide who “assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors.”
  • The sixth co-conspirator is described as a “political consultant” who “helped implement a plan to submit fraudulent slates of presidential electors” by attempting to recruit attorneys and US senators to assist in the alleged scheme.
• Trump’s trial on conspiracy and obstruction charges will be held in Washington DC and will be presided over by U.S. District Judge Tanya Chutkan, a Barack Obama appointee. Chutkan has presided over several Jan. 6-related cases and has established a reputation for handing down harsh punishments for Jan. 6 rioters that go beyond even what the prosecutors recommended.

• Trump is now “a President accused of betraying his country,” according to the New York Times Editorial Board. From the NYT: “The criminal justice system of the United States had never seen an indictment of this magnitude. It’s the first time that a former president has been explicitly accused by the federal government of defrauding the country. It’s the first time a former president has been accused of obstructing an official proceeding, the congressional count of the electoral votes. Mr. Trump also stands accused of engaging in a conspiracy to deprive millions of citizens of the right to have their votes counted. This fraud, the indictment said, led directly to a deadly attack by Mr. Trump’s supporters on the seat of American government.”
• The Washington Post’s Marianne LeVine observed that the indictment references Vice President Mike Pence or his office more than 100 times. It also revealed that Pence took “contemporaneous notes” about his interactions with Trump in the post-election period. Pence released a statement that the indictment “serves as an important reminder: Anyone who puts himself over the Constitution should never be president of the United States.”
• Quinta Jurecic wrote in The Atlantic that the indictment represents “the triumph of the January 6 Committee.” “The first two indictments—in Manhattan, for Trump’s role in coordinating hush-money payments in advance of the 2016 election, and in federal court in Florida, over the squirreling-away of classified documents at Mar-a-Lago—raised serious questions about Trump’s abuses of authority and his willingness to cheat and deceive in order to acquire and hold on to power,” Jurecic wrote. “But the third indictment cuts the deepest.”

• The Wall Street Journal Editorial Board deemed it “another troubling Trump Indictment.” From the WSJ: “This potentially criminalizes many kinds of actions and statements by a President that a prosecutor deems to be false. You don’t have to be a defender of Donald Trump to worry about where this will lead. It makes any future election challenges, however valid, legally vulnerable to a partisan prosecutor. And it might have criminalized the actions by Al Gore and George W. Bush to contest the Florida election result in 2000.”
• The Editors of National Review wrote “This Trump indictment shouldn’t stand.” From the Editors: “In effect, Jack Smith is endeavoring to criminalize protected political speech and flimsy legal theories — when the Supreme Court has repeatedly admonished prosecutors to refrain from creative theories to stretch penal laws to reach misconduct that Congress has not made illegal… There is a reason Smith does not have a solid statutory crime to rely on. To criminalize the conduct for which he seeks to convict Trump, Congress would have to write sweeping laws that could easily be wielded by one party against another to punish objectionable political conduct. That would undermine both electoral politics and the rule of law.”
• Conservative legal analyst Andrew C. McCarthy joined the Commentary Magazine Podcast to unpack the indictment. McCarthy and the hosts discuss “how its spate of novel approaches makes it extraordinarily problematic not only as a matter of law but also as a political matter.” McCarthy compares the indictment to the “hush money” indictment levied against Trump by Manhattan District Attorney Alvin Bragg in terms of using untested theories to go after Trump.

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© Dominic Moore, 2023