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We don’t know what specific charges special counsel Jack Smith will pursue if former President Donald 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.
But thanks to “persons briefed on the matter,” 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 Joe 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, 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.”
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.
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 set 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 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. It shouldn’t be too hard to convince a jury that the scheme qualified as deliberate fraud.
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.
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.
The third statute prohibits any conspiracy to deprive people of their constitutional rights, including the right to vote and have their votes counted.
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.
“An incitement charge raises First Amendment problems,” said Donald B. Ayer, a former top Justice Department official in the George H.W. Bush administration. “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.
“Part of the incentive to keep it simple is to get it done before the presidential election,” Rosenzweig added.
The trial has been scheduled for late May. 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.
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