Well, it finally happened. After being indicted twice on relatively minor charges — an alleged scheme to cover up an extramarital affair in New York, and unlawful retention of classified documents in a Florida federal court — former President Donald Trump will face trial for one of the most monumental crimes ever prosecuted by the Department of Justice: an alleged scheme to steal the presidency itself.
The actual charges against Trump under this, the third indictment facing the former president, arise under four federal statutes. Trump is accused of defrauding the federal government, of obstructing an official government proceeding (the Congressional certification of President Joe Biden’s 2020 victory over Trump), of engaging in a conspiracy to obstruct that proceeding, and of violating a federal law that makes it a crime to “conspire to injure, oppress, threaten, or intimidate any person” in the “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”
This later statute has been used in the past to prosecute ballot stuffing schemes, and similar efforts to rig elections by changing the vote count. As the Supreme Court held in Anderson v. United States (1974), every voter in a federal election “has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes.”
The new indictment lays out many facts that will be familiar to anyone who followed the congressional hearings on the January 6 attack on the US Capitol, or who has closely followed news reports about Trump’s failed efforts to overturn the 2020 election.
Broadly, the indictment alleges that Trump and six co-conspirators worked together to assemble slates of fraudulent members of the Electoral College, who would cast fake electoral votes for Trump. And it details several incidents when Trump allegedly lied to state or federal officials in order to persuade them to tamper with election results or otherwise try to change the results of the election.
Among other things, the indictment describes the infamous call between Trump and Georgia Secretary of State Brad Raffensperger, in which Trump urged Raffensperger to “find 11,780 votes” (Trump lost Georgia by 11,779 votes). It also describes several efforts by Trump to goad Vice President Mike Pence, who played a ceremonial role in certifying Biden’s victory, into joining the conspiracy to overturn the election results, as well as numerous other efforts to pressure government officials by Trump and his co-conspirators.
None of Trump’s co-conspirators are identified by name in the indictment, but the indictment provides enough details about their alleged actions that it is not hard to guess who some of them are. The Trump lawyer who allegedly pressured Arizona’s House speaker to “use the legislature to circumvent the process by which legitimate electors would be ascertained,” for example, is probably Rudy Giuliani. The co-conspirator who allegedly “devised and attempted to implement a strategy to leverage the Vice President’s ceremonial role overseeing the certification proceeding” is probably John Eastman.
The latest charges against Trump are significant not only because they involve the most egregious alleged crimes committed by the former president. They are also most likely prosecutors’ best shot at securing a conviction against Trump — at least among the three indictments against Trump that have been announced so far.
To convict Trump of a felony, New York prosecutors will need to prove that he falsified business records in order to cover up another crime, and it is not entirely clear how they plan to do that. Meanwhile, the Florida classified documents case will be heard by Judge Aileen Cannon, a Trump appointee who previously handed down a series of extremely dubious decisions benefiting Trump, that were eventually reversed by an appeals court. It is far from clear that prosecutors seeking a conviction against Trump can receive a fair hearing in Cannon’s courtroom.
The latest indictment, by contrast, neither turns on uncertain legal questions like the New York case, nor will it be heard by Cannon — who sits in Florida. The new criminal charges against Trump will be heard by Judge Tanya Chutkan, an Obama appointee.
Nevertheless, to convict Trump, special counsel Jack Smith will have to convince a jury to unanimously find Trump guilty. That means that just one pro-Trump juror, one who is determined to acquit the former president no matter what the evidence shows, could single-handedly sabotage Smith’s prosecution and force a mistrial.
And, should Trump be convicted, that conviction will undoubtedly be appealed to higher courts. Though there are no glaring legal flaws in this new indictment, there are at least two legal challenges that Trump’s lawyers could bring against at least some of the charges.
Trump is charged under the same statute that was used against many other January 6 defendants
One of the latest charges against Trump arise under a law implicating anyone who “corruptly ... obstructs, influences, or impedes any official proceeding, or attempts to do so.” This is the same statute that’s been used to secure convictions against many of the Trump supporters who invaded the US Capitol during the January 6 putsch.
The overwhelming majority of judges who’ve heard January 6 cases concluded that this prohibition on obstructing an official proceeding applies to defendants who invaded the Capitol. That said, two judges — both Trump appointees — disagree with this consensus view.
To understand the argument against allowing such prosecutions, it’s helpful to first read the entire statutory language criminalizing obstruction of an official proceeding:
(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.
Most judges have read this law broadly. As Judge Florence Pan wrote in an opinion for the United States Court of Appeals for the DC Circuit, “under the most natural reading of the statute,” it “applies to all forms of corrupt obstruction of an official proceeding” regardless of whether that obstruction involves the “record, document, or other object” mentioned in the statute’s first provision.
Moreover, of the 15 federal trial judges who’ve heard January 6 prosecutions, “no fewer than 14 district judges in this jurisdiction have adopted the broad reading of the statute urged by the government to uphold the prosecution of defendants who allegedly participated in the Capitol riot.” Only one of these 15 judges, Trump appointee Carl Nichols, disagreed with this consensus view.
Nichols claimed that the second provision of the statute — the broader one that applies to anyone who “otherwise obstructs, influences, or impedes” an official proceeding — “must be interpreted as limited by” its first provision. Thus, he claimed that the statute “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”
Meanwhile, another Trump judge, Gregory Katsas, dissented from Judge Pan’s opinion adopting the consensus reading of this statute. Katsas’s dissenting opinion is, frankly, very difficult to parse. But he concludes that the statute “covers only acts that impair the integrity or availability of evidence.”
In any event, Nichols and Katsas are both extreme outliers within the judiciary, as most judges agree with Pan that “the meaning of the statute is unambiguous” and it clearly applies broadly to anyone who “obstructs, influences, or impedes any official proceeding.” Indeed, one judge who agrees with Pan is Judge Justin Walker, another Trump appointee to the DC Circuit who joined most of Pan’s opinion. So Nichols’s and Katsas’s idiosyncratic readings of the statute isn’t even shared by all of Trump’s judges.
That said, the Supreme Court has not yet weighed in on this debate. And, if Trump is convicted of violating this obstruction-of-an-official-proceeding statute, his case is likely to reach the justices under the most politically tense circumstances. By the time this case is appealed to the Supreme Court, Trump could very well be the Republican Party’s 2024 nominee for president.
So it’s easy to see why the six justices appointed by Republican presidents, many of whom went out of their way to protect Trump from embarrassing investigations during his presidency, might not want to let a conviction stand that could prevent their political party from winning the next presidential election — even if striking down that conviction would require them to embrace an unusual reading of a federal law that few judges accept.
It is a crime to tamper with a federal election, but what about Congress’s certification of the Electoral College vote?
The other legal attack that Trump’s lawyers could potentially deploy against the latest round of charges against their client involves 18 USC § 241, the statute making it a crime to conspire against another person’s “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”
The Supreme Court has long held that the right to vote, and to not have that vote diminished or diluted by a fraudulent scheme, is one of the rights secured by the Constitution and US law. In Anderson, for example, the Court upheld the convictions, under the same statute that Trump is now accused of violating, of several West Virginia officials who conspired to cast fake votes in favor of a county commissioner candidate in a Democratic primary election.
Significantly, the fake ballots did not simply cast fraudulent votes for this one county commissioner, they also cast fraudulent votes for two federal candidates — then-Rep. Ken Hechler, and then-Sen. Robert Byrd.
Though Hechler and Byrd would have won their primaries with or without these fraudulent votes, Anderson held that the simple act of conspiring to cast fake ballots in a federal election was a crime. “It has long been settled that § 241 embraces a conspiracy to stuff the ballot box at an election for federal officers, and thereby to dilute the value of votes of qualified voters.” Such a scheme injures “the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect, without being diluted or distorted by the casting of fraudulent ballots.”
Trump’s lawyers may try to distinguish Anderson from the case against their client because the two cases involve somewhat different facts. Anderson involved a scheme to directly stuff a ballot box, while the case against Trump involves an attempt to get Congress to illegally certify Trump as the winner of the Electoral College after an election had already taken place and the ballots had already been counted.
To be clear, this distinction should not matter. Anderson held that the “right of all voters in a federal election to express their choice of a candidate” is illegally injured if their ballots are diluted by a single fraudulent vote — even if that vote did not change the outcome of the election. Trump, meanwhile, is accused to effectively trying to nullify every single one of the 81,282,916 ballots cast for Joe Biden in the 2020 election. If the relatively small bore conspiracy at issue in Anderson amounted to an unlawful conspiracy to deny a right protected by US law, then surely an attempt to change the result of an entire presidential election must also violate the law.
But federal courts, and especially the Supreme Court, cannot always be trusted to reach sensible legal decisions in the most politically charged cases — and it’s hard to image a more political charged case than a prosecution of the frontrunner for a major party’s presidential nomination. If a majority of the justices are determined to bail out Trump, they might do so by claiming that Anderson only applies to attempts to rig an election itself, and not attempts to change how Congress acts in the wake of that election.
In any event, it should be emphasized that neither of these attacks on the Trump indictment are likely to succeed. As noted above, most judges — including most Republican judges — have rejected the narrow reading of the obstruction-of-an-official-proceeding statute. And it’s likely the only reason why Anderson has not been extended to conspiracies to rig the Electoral College is because Trump’s attempt to change the result of a presidential election is unprecedented.
And even if Trump’s lawyers did manage to defeat these two charges against Trump, they still need to come up with legal arguments against the allegation that Trump conspired to defraud the federal government by deceitfully trying to alter who became an elector, and how those electoral votes were counted — and somehow convince the courts to embrace these arguments.
Nevertheless, the very fact that prosecutions of former presidents are unprecedented in the United States makes it difficult to predict how judges or juries will react to such a prosecution.