As the Justice Department’s special prosecutor prepares to indict former President Donald Trump, all signs point to criminal charges unseen in American history: defrauding the nation with fake electors to sway the 2020 election, obstructing Congress to stop it from certifying votes, and inciting an insurrection.
On Tuesday, Trump claimed he was singled out in a target letter by Department of Justice Special Counsel Jack Smith—a strong indication that an indictment could be weeks away.
In the two years since the former president’s failed coup, some of the nation’s top legal minds have analyzed how a federal indictment would read. Their conclusions, laid out in various legal memos and essays, all generally point to the same end: Prosecutors will rely on powerful criminal charges, many of which date back from the last time the nation faced an existential crisis during the American Civil War some 160 years ago.
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Although nothing is publicly known about the oncoming law enforcement action, Smith’s questioning of witnesses and grand jury subpoenas hint at what’s to come.
The House Jan. 6 Committee’s extensive investigation and public hearings already documented how Trump was repeatedly told he lost the 2020 election to his rival. As the clock ticked down the 64 days until Congress would certify the electoral college votes, Trump and his advisers secretly engaged in a scheme to assemble “alternate” electors from seven states who would replace authentic electoral college electors already slated to vote for President Joe Biden.
The effort ultimately went nowhere, but Smith is digging in. Last week, CNN reported that his investigators had sent subpoenas to all seven states: Georgia, New Mexico, Nevada, Michigan, Arizona, Pennsylvania, and Wisconsin. Additionally, on Tuesday, Milwaukee Journal Sentinel politics journalist Molly Beck reported that federal investigators interviewed a Wisconsin elections official in April.
A group of scholars including former ambassador Norman Eisen, government watchdog nonprofit leader Noah Bookbinder, former U.S. Deputy Attorney General Donald Ayer, and New York’s former chief public corruption investigator E. Danya Perry put together a model prosecution memo that examines what the DOJ can do with that.
Trump could be charged with violating 18 U.S.C. §§ 371—conspiracy to defraud the United States—which carries a five-year prison sentence if two or more people join forces to “commit any offense” against the country. In their memo, legal scholars also cite how Trump and his advisers mounted a pressure campaign on then-Vice President Mike Pence that would have had him abuse his role as the overseer of the electoral certification—a clear violation of the Constitution.
On that note, a federal judge in California last year already found that Trump and John Eastman, the conservative lawyer who advised him to manipulate Pence this way, likely violated this conspiracy-to-defraud law.
Investigators can point to a heated email exchange between Eastman and Greg Jacob, the former vice president’s lawyer, which was documented by the Jan. 6 Committee’s final report. When Eastman conceded that they were asking Pence to commit a “relatively minor violation” of the Electoral Count Act, Jacob pushed back on the ridiculous idea and asked if Eastman had at the very least told Trump that the vice president doesn’t legally have that power. Eastman’s response was that Trump had “been so advised” and later added: “But you know him—once he gets something in his head, it is hard to get him to change course.”
There’s a third angle to a possible violation of § 371: over the way Trump tried to use Jeffrey Clark, a MAGA loyalist in the upper decks of the DOJ.
Trump briefly considered elevating Clark to become the nation’s attorney general, where he could weaponize the Justice Department by casting doubt on the election results and pressuring states to use the fake electors.
Part of this investigation could focus on Trump’s efforts to also threaten Georgia Secretary of State Brad Raffensperger in the now-infamous January 2021 phone call in which Trump asked him to “find 11,780 votes” to overturn the election there. And it appears that Smith’s team is examining Trump’s similarly menacing behavior directed at the man who was Arizona’s governor during the 2020 election, Doug Ducey—whom Trump grew to despise for refusing to flip the results in the Grand Canyon State. On Tuesday, CNN reported that Smith’s investigators also reached out to Ducey.
Trump could also be slapped with the same criminal charge the DOJ has used against more than 200 of the MAGA loyalists who assaulted the Capitol building during the winter insurrection: impeding an official proceeding. Another model prosecution memo put together last year by former Michigan federal prosecutor Barbara McQuade lays this charge out.
The massive crowd showed up at Trump’s direction following his December tweet and his D.C. speech that day calling for them to march on Congress. As the DOJ has proven time and time again in court, the rioters attempted—and succeeded—in interrupting the certification of the 2020 election results.
For that, Smith could charge Trump with violating 18 U.S.C. § 1512(c)(2), which prohibits obstructing, influencing, or impeding “any official proceeding”—or even attempting to do so. That carries a hefty 20-year prison term.
The most serious criminal charge is also the hardest to prove—and using it would be an extraordinary maneuver.
Smith could try to hold Trump directly responsible for the savage violence his followers exacted on dozens of police officers—and the extensive property damage on the Capitol, which the DOJ estimated last year at $2.9 million.
Legal scholars have pointed to 18 U.S.C. § 2383, which severely punishes anyone engaged in outright rebellion. It dates back to a time when the nation was at war with itself, and the Union found it necessary to snuff out any flame of violent resistance.
At only 57 words, the text has barely changed since it was signed into law by President Abraham Lincoln, and prosecutors haven’t used it since the Civil War, according to an in-depth analysis by two college professors writing for the Illinois Law Review.
If Smith’s prosecutors decide to go down this route, they can point to some details surfaced by the Jan. 6 Committee, which ended its work by making a criminal referral to the DOJ citing this very statute.
The special counsel can make the case that when Trump exhausted all of his legal challenges—the many “kraken” tentacles of his conspiracy-laden lawsuits across the country were cut off one by one by judges—he instead employed the threat of the crowd to pressure Pence and members of Congress.
This law prohibits insurrection—or giving aid or comfort to insurrectionists. As legal scholars have noted, prosecutors could point to Trump’s 2:24 p.m. tweet on that fateful day, when he egged on the rioters mid-attack.
“Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” Trump posted, as his followers beat police officers and lawmakers tried evacuating the Capitol.
Smith could also point to Trump’s reluctance to intervene for the next three hours, as the violence intensified.
If he’s charged, Trump faces up to 10 years in prison for this crime alone. However, legal scholars warn against what’s become a common reading of the law, which says that violators “shall be incapable of holding any office under the United States.”
Bizarrely, that language doesn’t appear to apply to elected officials, South Texas College of Law Houston professor Josh Blackman and Maynooth University Department of Law lecturer Seth Barrett Tillman cautioned in 2021.
That clause “has remained virtually unchanged since 1862,” they wrote. And at the time, it only applied to federal employees and appointees. That’s because back then, legislators considered The Federalist Papers canon. And as Alexander Hamilton argued in Federalist No. 60, Congress can’t tamper with the Constitution by adding qualifications for elected federal officials.
“If Donald Trump were convicted of violating 18 U.S.C. § 2383, he would not be disqualified from serving as president,” they observed.
Bill Barr, Trump’s own former attorney general, said on CBS’ Face the Nation television program last month that he expects this case to be difficult “because of First Amendment interest.” But the underlying facts of the case are still strong enough that Barr said he expected the special counsel to indict the former president this summer.
An open question is whether this will finally be the breaking point for the mainstream Republican Party, which continues to support Trump at every turn. It’s that blind loyalty to MAGA that the conservative legal scholar J. Michael Luttig warned about in his recent guest column in the New York Times, where he noted that Republicans “will be as responsible for any indictment and prosecution of him for Jan. 6.”
“Republicans have waited in vain for political absolution. It’s finally time for them to put the country before their party and pull back from the brink—for the good of the party, as well as the nation,” Luttig noted.
