If you want to understand what Trump might be charged with I recommend reading Just Security’s possible prosecution memo. We don’t know at this moment what Trump might be facing but we do know that he’s facing indictment in the January 6th case now that he’s received a target letter.
This tweet thread from Norm Eisen, one of the authors, offers a succinct summary:
The memo is unique bc ours is the first in-depth application of the relevant criminal law to the facts, building on the more concise criminal referrals the committee offered in its report
We look at that report w/ skeptical eyes as prosecutors do
We narrow the case to what can confidently be proven to a jury, and for the first time anywhere we consider at length, and of course in good faith, Trump’s defenses and how they will fare
We can do that because of our all-star coauthors @NoahBookbinder, @DonaldAyer6, @StantonLaw, @EDanyaPerry, @DebraPerlin and Kayvan Farchadi, and our amazing editor @RGoodlaw. (4/x)
Moreover, we can now assess prosecution because the public record has grown a great deal since the Select Committee report’s publication in December 2022, and we update it with the information released after the report
We consider the depositions & documents that the Committee itself released after the report came out, as well as a substantial amount of other reported new evidence
& as @JRubinBlogger noted in her write-up: the key is simplicity!
OK now for those three (relatively) simple acts
ACT ONE. Trump knew he lost the election but did not want to give up power, so he worked with his lawyers and others on a wide variety of schemes to change the outcome.
Those schemes included creating fraudulent electoral certificates that were submitted to Congress, implicating statutes such as 18 U.S.C. § 371, which prohibits conspiracies to defraud the United States in the administration of elections
ACT TWO. When all the other schemes failed, Trump and his lawyers ultimately concentrated on using the false electoral slates to obstruct the constitutionally mandated congressional certification of the election on January 6
This implicates 18 U.S.C. § 1512, which prohibits obstruction of an official proceeding
Their primary goal: have VP Pence in his presiding role either block Congress from recognizing Joe Biden’s win at all–or at least delay the electoral count
ACT THREE. When Pence refused, Trump went to his last resort: triggering an insurrection in the hope that it would throw Congress off course, delaying the transfer of power for the first time in American history
This implicates statutes such as 18 U.S.C. § 2383, which prohibits inciting an insurrection and giving aid or comfort to insurrectionists
Prosecutors rarely charge § 2383. As we discuss below, they only do so with extreme caution
We believe there is sufficient evidence to pursue it—as did the Select Committee in making a criminal referral of Trump under that statute—but prosecutors may make different choices. Much will depend on the evidence the Special Counsel develops.
Throughout this memo, we urge a FOCUSED approach to charging and trying the case that can be done using our three-part structure or another simplifying approach that would allow the case to come to trial within a year
Now let’s dig into each of those three offenses
First is 18 USC § 371, conspiracy to defraud the US
This statute has two different “prongs,” and Trump likely violated both of them
Trump likely violated both the “offense prong” & the “defraud prong”
This means he likely agreed to 1) do something illegal & 2) do something to prohibit a lawful govt function
Submitting false electoral slates likely constitutes the crime of making a false statement to Congress & interfering with the count of of genuine electoral ballots disrupts a lawful govt function Trump drove both, ergo his potential liability under 18 U.S.C. 371
By the way, it doesn’t matter if the object of the conspiracy is completed or not–a defendant can still be convicted just for attempt
Trump could also be charged for attempting to obstruct counting of electors via § 1512(c)(2)
The law doesn’t require proof of conscious wrongdoing–but Trump & collaborators likely knew their conduct was wrong anyways
Trump seemingly knew he lost election & court battles
Counting the electoral votes is an official proceeding–and what counts as impeding one is “expansive,” according to at least one federal judge
When Trump pressured Pence to reject electors, and unleashed a mob on the proceedings, he apparently impeded them
Trump also apparently gave aid to insurrection, which is a crime under 18 USC § 2383
Bipartisan majorities have called the attack on the Capitol an “insurrection”
Trump’s comments leading up to & on Jan 6 may have incited the insurrection
He told them “fight like hell” and “you’ll never take back our country with weakness”
His tweet at 2:24pm targeted the VP–followed by 187 minutes of inaction
Trump has offered many explanations, denials, and defenses over the last two years
We explain why these defenses will likely fail
Trump claims his Jan 6 speech is protected by the 1st Amendment–it’s not
His speech passes the Brandenburg test, which says that provoking imminent lawless action is not protected speech
By his supporters’ own words, Trump’s speech encouraged them to storm the Capitol
Here’s one of the unique things we do in the report:
We did a deep dive into all Trump’s defenses, factually and legally
Trump will surely argue (as he has elsewhere) that he has immunity from criminal prosecution for acts he took as president
But that immunity does not apply to criminal acts taken well outside the scope of the presidency like trying to overthrow an election
Trump has also raised an advice of counsel defense
For as many attorneys like Giuliani and Eastman who told him “yes,” many told him “no”
Either way, Trump likely believed in his false election claims long before any attorney convinced him they were true
In any false statements case, like this one, the prosecution has to prove that the false statements were made in bad faith
So, Trump will certainly argue that is not the case
HOWEVER, this defense is likely FACTUALLY & LEGALLY unsustainable
There is ample evidence that Giuliani, Eastman, and the main perpetrators of the fake electors scheme KNEW it was unlawful
We know this because they said as much behind closed doors
Lastly, Trump and some of his allies claimed that he authorized 10k Nat’l Guard troops for Jan 6 which were rejected by the Mayor of DC
This is likely false based on all available evidence from military leaders’ testimony
So, as you can see, there is a path to prosecuting Trump, and we think that is coming
It’s coming.