The Third Trump Indictment: Controversial But Essential

The indictment is solid legally and factually. Criticisms of it based on its substance and other considerations are unpersuasive. Disregarding this case would be far more problematic than pursuing it.

Donald Trump now faces three criminal indictments and counting. ^[1]A Georgia grand jury may issue a fourth indictment for election interference, and the current indictments could be expanded. The first indictment, by the Manhattan District Attorney regarding hush money payments to Stormy Daniels, is by far the weakest. It was widely panned as politically motivated and legally dubious. If this case goes to trial and Trump is convicted, the conviction would likely be overturned on appeal.

The second indictment, by Justice Department Special Counsel Jack Smith relating to improper possession and handling of classified documents at Mar-a-Lago and obstruction of federal efforts to recover them, is the strongest. There is a broad consensus among legal experts across the political spectrum that prosecutors have Trump dead to rights in this case. His best hope may be a hung jury, given the relatively Trump-friendly jury pool in the Florida district where the case will be tried.

The third and most recent indictment, also brought by Special Counsel Smith, presents the most serious and complex case. It goes to the heart of Trump’s efforts to overturn the 2020 presidential election result based on his pervasive, patently false “stolen election” claims. This case has also produced the most diverse reactions. Media and expert opinion on the left is generally supportive; much opinion on the right, although not all, is highly critical.

The Facts

The 45-page indictment was released on August 1.^[2]The Lawfare website has an excellent overview of the indictment as well as detailed explanations of the facts and statutes it cites. The facts it alleges are familiar: Invoking knowingly false claims of election irregularities, Trump and his co-conspirators pressured state election officials to alter their vote counts, “find” votes for him, dismiss legitimate electors, and substitute fake pro-Trump electors. They organized the fake electors and had them submit false certificates in connection with the January 6 congressional election certification proceeding. They relentlessly pressured Vice President Pence to exceed his constitutional role and assume control over the election certification by rejecting legitimate electors in favor of Trump’s fake ones or at least delaying the certification. (¶ 10 of the indictment)

According to critics, it will be hard to disprove that Trump sincerely believed the election was “stolen” from him. They point out that the indictment contains no “smoking gun” evidence from Trump’s own mouth that he knew he lost.^[3]Its absence from the indictment does not necessarily mean that such evidence does not exist. In fact, there are indications that Trump acknowledged his loss to some staffers, including White House … Continue reading However, this is a red herring argument; the case doesn’t turn on whether Trump somehow actually believed the election was stolen.^[4]Of course, it’s highly implausible that Trump did (does) believe this given the total lack of supporting evidence, the mountain of contradictory evidence, and the fact that he has shown himself … Continue reading Rather, the key factual issue is whether the many false claims of specific election irregularities by Trump and his co-conspirators in support of their actions to overturn the election were knowing lies.

The indictment presents copious evidence that they were. Trump and the others asserted detailed factual claims they had no basis to believe were true and that they had been repeatedly and authoritatively told were false. (See generally ¶¶ 13-52) Moreover, the indictment cites instances in which Trump unquestionably knew he was lying. For example:

• • He asserted that Georgia election officials did not address a series of his false claims just one day after the officials refuted those claims in detail in a phone conversation with him. (¶ 32)
  • He told Pence that the Justice Department was finding major infractions regarding the election after they told him they were not. (¶ 90.b)
  • He approved a statement that he and Pence “are in total agreement that the Vice President has the power to act” despite Pence’s repeated denials to Trump that he had such authority. (¶ 99)
  • He asserted that some states wanted to re-certify their elector submissions when he knew they had no such intention. (¶ 104)

Finally, the indictment presents evidence that Trump knew he was engaged in a scheme of lies. After Justice Department officials refuted  his claims and declined to challenge the election, Trump responded: “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.” (¶ 74) After Pence refused Trump’s demand that he assert broad authority over the election certification, Trump responded: “You’re too honest.” (¶ 90.c)

The Law

The indictment is noteworthy for the crimes it charges as well as those it omits. The included charges focus on the efforts of Trump and his co-conspirators to overturn the election and prevent its certification through various fraudulent schemes. It does not contain charges relating directly to the attack on the U.S. Capitol, such as insurrection and seditious conspiracy, as the House January 6 Committee had recommended.^[5]See pp. 109-112 of the Committee’s Final Report. This reflects a measured approach that best matches the charges with the evidence. For the most part, the charges set forth in the indictment are straightforward in relation to the facts alleged.

The first count of the indictment charges a violation of 18 U.S.C. 371, which makes it a crime to “conspire . . . to defraud the United States, or any agency thereof in any manner or for any purpose.” As summarized above, the indictment alleges extensive fraudulent efforts by Trump et al. to undercut the legitimate outcome of the presidential election and defeat or delay congressional certification of it.

Some critics of the indictment contend that 18 U.S.C. 371 does not apply because fraud under federal criminal law is limited to schemes to swindle victims out of money or property. As discussed in the Justice Department’s prosecutorial manual, however, the courts have applied section 371 broadly, consistent with its sweeping language, and have held specifically that it is not limited to fraud aimed at money or property. Those arguing for a narrower reading rely on cases dealing with a different fraud statute (18 U.S.C. 1343) that, unlike section 371, does explicitly reference fraud to obtain money or property.

The second and third counts of the indictment charge violations of 18 U.S.C. 1512(c)(2) and 1512(k). Subsection 1512(c) provides:

“(c) Whoever corruptly—

     “(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

     “(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.”

Subsection 1512(k) criminalizes conspiracies to violate subsection (c).

Section 1512(c)(2) has been successfully invoked to convict many of the rioters in the January 6 attack on the Capitol, and its use for that purpose has been affirmed by the U.S. Court of Appeals for the D.C. Circuit. This statue does not require acts of violence and seems clearly applicable to Trump and his co-conspirators as well.

One potential complication is that a January 6 rioter is seeking Supreme Court review of his conviction on the basis that section 1512(c)(2) only applies to evidence-tampering in connection with an official proceeding. He contends that that the word “otherwise” in paragraph (c)(2) means that a violation of that paragraph is limited to conduct within the general scope of paragraph (c)(1). If the Supreme Court were to adopt this more restrictive interpretation, it would jeopardize the convictions of many January 6 rioters. However, Trump could still be covered since his conduct involved tampering with documentation and other evidence relating to congressional certification of the election. In any event, the section 1512(c)(2) charge against Trump, like the 18 U.S.C. 371 charge, is clearly consistent with the law as it stands now.

The fourth and final count is a violation 18 U.S.C. 241, which prohibits conspiracies to injure, oppress, threaten, or intimidate anyone in the exercise of a right or privilege under the Constitution or laws of the United States. This count may be a stretch since section 241 typically applies to voter intimidation rather than actions relating to ballots already cast. On the other hand, the courts have applied section 241 more broadly.^[6]See the Lawfare statutory summary cited in footnote 2 for more on this.

Other Considerations

Critics have raised objections that go beyond the specifics of the indictment, but they are tenuous at best.

Some argue that the prosecution violates Trump’s free speech rights under the First Amendment. However, Trump is not being prosecuted for insisting, no matter how implausibly, that the election was stolen from him or for the many lawful, if frivolous, judicial actions he pursued to contest the election. Rather, the prosecution is based on the alleged fraudulent schemes he and his co-conspirators instigated to overturn the election through extralegal means featuring extensive, knowingly false claims.

Critics also assert that the prosecution is politically motivated and an example of uneven justice compared, in particular, to the lenient treatment of Hunter Biden. They also make much of the timing of the indictment in relation to the 2024 presidential election. Of course, it would have been much better if this case (and the others involving Trump) could have been resolved prior to the election campaign. However, to the extent that the time taken involved anything more than the complexities of the case, it seems attributable to an abundance of caution on the part of Justice Department leaders in going after Trump.

In any event and most significantly, there is no hint of political motivation or bad faith on Special Counsel Smith’s part. As detailed above, his indictment is measured and well supported by the facts and statutes cited. The same is true of his indictment in the classified documents case, which even many of the critics here supported. The attacks on the good faith of this prosecution call to mind liberal assaults on the legitimacy of the Supreme Court, which conservatives rightly decry. Both illustrate the degradation of our public discourse in which partisans on each side are quick to attack the integrity of government officials and institutions when they disagree with their decisions.

Finally, some critics maintain that the prosecution of a former president for conduct while in office, particularly one running again, is a grave and potentially divisive undertaking that should be attempted, if at all, only when the case is airtight. One critic prone to hyperbole went so far as to compare the indictment to the action of a “banana republic.”

It’s certainly true that prosecuting a former president is a very serious matter, but so is the conduct Trump is accused of. His reprehensible actions following the election clearly violated his constitutional responsibilities and demonstrated utter contempt for the most basic democratic norms. If anything equates to “banana republic” conduct, his surely did. Even critics of the indictment (other than MAGA zealots and craven Republican politicians) acknowledge the outrageousness of Trump’s post-election conduct.^[7]See, e.g., here and here.

It’s by now clear as day that Trump committed impeachable acts  warranting his removal from office and disqualification from future office. However, the timing did not permit full development of the impeachment case against him, and the House overreached by charging him with “incitement of insurrection.” Also, it was questionable whether Trump could be convicted after leaving office.

The case laid out against Trump in the indictment is not a slam-dunk; no case this complex could be. However, it is well grounded in the facts and the law. Declining to pursue it and failing once again to hold Trump accountable would be far more divisive and harmful for the Nation than allowing it to play out.