Breaking Down Trump's January 6 Indictment

The most important Trump case yet

For more than two years, many have been wondering whether former president Trump would ever be held accountable for his efforts to overturn the election and the events of January 6, 2021. We now have the beginning of an answer. Special Counsel Jack Smith has obtained a four-count indictment charging the former president for his attempt to remain in office after losing the 2020 presidential election. It’s a detailed, powerful, and tactically smart indictment.

Special Counsel Jack Smith announcing Tuesday’s indictment

The Charges

The forty-five page indictment charges only Trump and contains four counts.

It begins with a simple but powerful statement: “The Defendant lost the 2020 presidential election. Despite having lost, the Defendant was determined to remain in power.” All else flows from this simple declaration of fact.

Count One is conspiracy under 18 U.S.C. 371. It charges that Trump conspired with others to defraud the United States by impairing, obstructing, and defeating the lawful certification of the election. As I predicted in this earlier post, the conspiracy charge makes up the bulk of the indictment – 42 of the 45 pages. Prosecutors use a conspiracy charge to lay out an entire criminal scheme, all of its components, and all of the players.

In a so-called “speaking indictment,” a conspiracy charge is commonly used to tell the story. Count One describes in detail the different aspects of the effort to keep Trump in office. Shortly after the election, the indictment charges, “the Defendant launched his criminal scheme.” That scheme included Trump working with his co-conspirators across seven states and in multiple different ways to seek to prevent the peaceful transfer of power.

Count Two is another conspiracy, this one to obstruct justice under 18 U.S.C. 1512. This is a charge of conspiring to obstruct the official Congressional proceeding to certify the election on January 6. This is the same charge the Justice Department has successfully used to prosecute hundreds of the Capitol rioters. Although Capitol riot defendants have challenged the use of this statute, so far it has been upheld. In this case the conspiracy to obstruct is much broader than the January 6 riot and includes all the same aspects of the scheme set forth in Count One.

Count Three is the only non-conspiracy count. It charges Trump alone with obstructing the Congressional proceeding to certify the election under 1512. Count Three also cites 18 U.S.C. 2, the aiding and abetting statute, which makes it a crime to aid, abet, counsel, assist, or procure the commission of a crime by someone else. My guess is that part of the prosecution’s theory here will be that by summoning the rioters to Washington, sending them to the Capitol, and then doing nothing to stop them for more than three hours, Trump aided and abetted the Capitol riot itself.

Finally, Count Four is a conspiracy to violate civil rights under 18 U.S.C. 241. As we expected after we learned that charge was named in Trump’s target letter, it charges that Trump conspired with others to deprive one or more persons of their right under the Constitution and laws to vote and to have their votes counted.

How to Overturn an Election: A Five Step Plan

An impressive aspect of this indictment is how methodically it lays out Trump’s scheme to overturn the election results and how it progressed and escalated through five different stages. All of these different steps are charged as part of the same overarching conspiracy.

Step 1: Pressure state officials to overturn their election results. The indictment provides detailed accounts, state by state, of the efforts by Trump and his co-conspirators to pressure officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin – states that Biden won – to overturn their election results. Unlike the president, officials in those states largely upheld their oaths of office, resisted his efforts, and repeatedly informed him that his claims of voter fraud were baseless.

Step 2: The fake electors. In paragraphs 53-69 the indictment describes how the co-conspirators organized slates of fake electors to send documents to Washington falsely certifying that they were lawful electors and that Trump had won the election in their state. This took place in seven different states, again despite the complete lack of any evidence of actual voter fraud that could affect the outcome of the election.

Step 3: Using the Justice Department to influence the states. The indictment next describes, in paragraphs 70-85, Trump’s efforts to put DOJ civil attorney Jeffrey Clark in charge of the Justice Department to put the weight of DOJ behind the fake electors scheme. Clark was willing to send a letter to Georgia and other states falsely stating that DOJ had grave concerns about their election. The letter would have asked the state legislature to convene a special session that could result in the slate of fake Trump electors being adopted or the Biden electors being thrown out. Only the threat of mass resignations from other DOJ officials and Trump’s own White House counsel stopped this plan.

Step 4: Pressure Mike Pence. Paragraphs 86-105 describe the escalating efforts by Trump and his co-conspirators to pressure Mike Pence to throw out the votes from the seven “contested states” or at least send the issue back to the states to delay certification of the election. The efforts to pressure Pence continued up to and through January 6 and the riot at the Capitol. It included Trump Tweeting during the riot about Pence’s failure to do the right thing, while the mob was chanting “Hang Mike Pence” and searching for the vice president.

Step 5: Unleash the mob. When all his other efforts had failed, on January 6, 2021 Trump gave an incendiary speech to the crowd assembled at the ellipse, sent them to the Capitol, and then sat by and did nothing for three hours while they rioted and disrupted the certification of Biden’s victory. The indictment describes how that evening, even after the riot was over, Trump and other conspirators were still working the phones, trying to get members of Congress to delay the certification.

A Smart Indictment

This is a very shrewd indictment. Smith has brought a streamlined case that gives him the best chance of getting to trial before the 2024 election. The evidence of the different charges is largely the same, allowing him to tell one consistent story to prove his different criminal allegations. And he has avoided some other charges that could have delayed or even derailed the case.

I had an op-ed in the New York Times today that explains in more detail why I think this is such a smart indictment. You can find that article at this link (I’ve shared a free version so you can read it without a Times subscription.)

One concern you might hear is that Trump wasn’t charged with inciting a rebellion under 18 U.S.C. 2383. I explained in the Times why I think that makes sense. But that statute does provide that anyone convicted “shall be incapable of holding any office under the United States.” Some have argued Trump needs to be charged with that offense so he can be barred from becoming president again.

I think that’s wrong, for a few reasons. First, it assumes Trump could be convicted of that charge, which is far from certain for reasons I explained in the Times and here. (The charges Smith has chosen are far stronger.) Second, there is a lot of debate over whether this disqualification provision applies to the president, and if it does whether it is constitutional. Third, even if convicted before the election Trump would have a right to appeal, and there is no way all his appeals would be exhausted in time to prevent him from running and, if elected, scuttling the federal cases against him.

Most important though, is this: we can’t rely on the criminal justice system to save democracy from itself. Prosecution can punish Trump for his past misdeeds, but the voters need to reject him for future office. If they don’t, then we have far greater problems.

Where are the Co-Conspirators?

A conspiracy requires two or more human actors who agree to participate. This indictment identifies six Trump co-conspirators but does not name or charge them. I said in my earlier post that I would be surprised if Smith indicted Trump alone, but on reflection I think it’s a smart decision.

By charging Trump alone, Smith has given himself the best chance of getting to trial relatively quickly. More defendants would mean more lawyers, more discovery, more motions, and more delays. There will be plenty of time to charge the other co-conspirators down the road. Having unindicted co-conspirators out there also allows Smith to continue using the grand jury to investigate the broader case while the prosecution of Trump proceeds.

The indictment follows the Justice Department’s convention of not naming those who are not being charged. But from the descriptions of their actions and the facts already know, it’s pretty easy to deduce who most of the co-conspirators are:

Co-Conspirator #1 – described as a lawyer who spread false claims about election fraud, is Rudy Giuliani.

Co-Conspirator #2 – described as a lawyer who developed a plan to use Mike Pence to overturn the election results, is John Eastman.

Co-Conspirator #3 – described as an attorney who spread claims of election fraud that even Trump agreed sounded “crazy,” is Sidney Powell.

Co-Conspirator #4 – described as a former Justice Department official who sought to use DOJ to persuade states to overturn their election results, is Jeffrey Clark.

Co-Conspirator #5 – described as an attorney involved in the fraudulent electors scheme, is Kenneth Chesebro, a lawyer who worked with Eastman and Giuliani.

Co-Conspirator #6 – described as a political consultant who assisted with the fraudulent electors scheme, is the one whose identity is not yet clear.

None of these co-conspirators are out of the woods, by any means. Smith clearly has the goods on them and will act at the appropriate time. They are all likely either to cut a deal and cooperate or end up being charged in the future.

Finally, given that five of the six are lawyers, this is just further evidence that MAGA really stands for, “Making Attorneys Get Attorneys.”

Trump Knew He Lost

One interesting aspect of this indictment is the detail it provides on all the reasons Trump knew he had lost the election. Paragraph 11 describes eight different ways Trump was informed by close advisors, state officials, and the courts that he lost the election and that his claims of voter fraud were false. The indictment repeatedly, and very effectively, contrasts this overwhelming evidence that Trump knew he lost with the claims about election fraud that he continued to make anyway.

As I’ve argued before, including in this op-ed with George Conway, legally it doesn’t matter whether Trump truly believed he lost the election. Even if he sincerely believed there was fraud, that wouldn’t mean he could use illegal methods to overturn the result. If I honestly believe a bank had cheated me and owes me money, that doesn’t mean I can rob the bank to get my money back.

But although it’s not legally required, the evidence that Trump knew he lost is important and will affect the case in the eyes of the jury. It makes the scheme all that more sinister. This isn’t a case where Trump had a good-faith belief that his cause was righteous but just used some questionable methods in response. He knew he lost, and still repeatedly lied about it and tried to remain in power.

The Willingness to Use Violence

One thing that’s striking when reviewing the indictment is how readily Trump and his co-conspirators seemed willing to contemplate the prospect of violence, if necessary, to carry out their scheme. Perhaps the most chilling example is in paragraph 81, where the Deputy White House Counsel tells co-conspirator #4 (Jeffrey Clark) that there will be “riots in every major city in the United States” if Clark becomes acting Attorney General and pressures the states to overturn the election. Clark allegedly responded, “That’s why there’s an Insurrection Act.”

Just to be clear – the Insurrection Act allows the president to call up the U.S. military to use force to restore order in the United States. The co-conspirators were contemplating that Trump could use the military to suppress any protests that might result from his refusal to relinquish his office. Tanks in the streets, suppressing those trying to save democracy. This is straight out of the dictator’s handbook.

That’s not the only example. Paragraph 94 describes how a Trump senior advisor told Co-Conspirator #2 (John Eastman) that his plan to have Pence throw out the election results was going to cause “riots in the streets.” Eastman reportedly responded that there have “previously been points in the nation’s history where violence was necessary to protect the republic.” And beginning in paragraph 106, the indictment describes how Trump “exploited” the violence at the Capitol to try to further his scheme to remain in power.

These allegations highlight that this was not merely a political dispute or courtroom battle. The co-conspirators were willing to contemplate using even military force to quell any protests and keep Trump in office. It’s frightening to think about how close they came to succeeding.

What Comes Next

Trump is due to appear in court on Thursday to be booked and arraigned. Jack Smith has said he will seek a speedy trial. This case probably has a far better chance than the case in Florida of actually getting to trial well before the election. The Florida case will be slowed down by all the issues involving classified documents, which this case does not have.

The judge assigned to the case, Tanya Chutkan, is experienced and has a solid reputation. She has presided over a number of prosecutions of Capitol rioters. She will be fair and no-nonsense. Unlike Judge Cannon in Florida, there will be no question about her ability to handle this complex case and to keep it moving forward.

As I said in my New York Times piece, this is the most significant prosecution of Trump. In fact, it’s one of the most significant criminal cases in our entire history. This case involves a sitting U.S. president allegedly attacking democracy itself and fighting against the peaceful transfer of power that has central to our national identity. It’s gratifying to see Trump finally being held to account in such a powerful indictment.

Now it’s up to the justice system and a jury.