The Charges in Trump's Target Letter

Here's what the indictment might look like

Last weekend Donald Trump received a target letter from special counsel Jack Smith in connection with his investigation of January 6, 2021 and the efforts to overturn the election. Prosecutors typically send a target letter near the end of an investigation to formally notify the recipient he is being investigated by a grand jury. The letter usually offers the target the opportunity to testify in the grand jury and present his side of the story. That offer is typically declined, as Trump did here. An indictment almost always soon follows.

According to news reports, Trump’s target letter refers to three possible criminal charges: conspiracy to commit an offense or to defraud the United States; tampering with a witness, victim, or informant; and deprivation of civil rights. Two of these charges were widely expected to be part of any indictment of Trump for January 6. One was a bit of a surprise.

This list isn’t necessarily exhaustive, and the reports could be inaccurate. But if the reports are right, here’s how we might see Smith use those three statutes. Remember there could be multiple counts of any crime, so three charges identified does not necessarily mean a three-count indictment.

Conspiracy

The general federal conspiracy statute, 18 U.S.C. § 371, was widely expected to be part of any indictment. It requires proof that the defendant entered into an agreement to commit an offense against the United States or to defraud the United States, that he knowingly joined the agreement with the intent to further the criminal objective, and that at least one co-conspirator committed an overt act in furtherance of the conspiracy.

A conspiracy requires two or more human actors who agree to participate. There are plenty of candidates for potential co-conspirators with Trump, including some of his attorneys and other top advisors. But there’s no requirement they all be charged in the same indictment or at the same time. Trump could be charged alone with conspiracy, as long as the indictment alleges that he conspired with one or more other people. Such unindicted co-conspirators are usually referred to by a pseudonym, such as “Public Official #1,” or simply as “persons known to the grand jury.”

There are no confirmed reports of others who have received similar target letters. I don’t read too much into that yet. Those other letters could still be coming, or the recipients simply may not be talking about it. It’s also possible some co-conspirators have already agreed to cooperate and will not be indicted.

I guess I’d be surprised if Smith indicted Trump alone. One argument for doing so might be that there will be lots of legal wrangling involving only Trump, with his expected claims of executive privilege, presidential immunity, and the like. With the campaign and election looming, Smith might want to indict Trump first so those legal fights can get underway while he continues to investigate. He could then supersede the indictment to add co-conspirators and/or other charges in the future. But this is, of course, pure speculation.

Conspiracy is an extremely common charge in almost any criminal case involving multiple actors. It’s a great vehicle for prosecutors to use to lay out an entire criminal scheme, identifying all the actors and everything that they did. Expect a conspiracy charge to be Count One and to take up bulk of the indictment.

The Two Prongs of the Conspiracy Statute

There are two ways to violate section 371. The first is a conspiracy to commit an offense against the United States, which simply means a conspiracy to commit any federal crime. In this case a likely candidate is conspiracy to violate the false statements statute, 18 U.S.C. § 1001, by causing phony electors to submit false documents to the federal government.

The other prong of 371 prohibits conspiracies to defraud the United States. This is very similar to an obstruction of justice charge. The Supreme Court has held this prohibits conspiracies to interfere with or obstruct the lawful functions of the federal government by deceptive or dishonest means. This charge could allege that Trump and others conspired to block the government’s lawful efforts to certify the presidential election, through a variety of methods.

A benefit of such a conspiracy charge for prosecutors is that it allows them to draw in all the different tentacles of the scheme to overturn the election and include them in a single charge. They could allege the conspiracy to defraud the United States had several different aspects, including the fake electors, the efforts to pressure state officials, the efforts to use the Department of Justice to interfere with the election, the pressure on Mike Pence, and summoning the mob to the Capitol on January 6. All of these could be included as part of one overall conspiracy charge. And if the government’s proof fails or is less compelling on one aspect of the scheme, all the other tentacles still remain.

A final and potentially important aspect of a conspiracy charge is that a conspiracy does not need to succeed. The conspiracy and any underlying crimes one conspired to commit are separate offenses, and one may be guilty of conspiracy even if the object of the conspiracy was ultimately unsuccessful.

Conspiracy under 371 is a felony with a maximum penalty of five years in prison.

Tampering with a Witness, Victim, or Informant

The target letter also reportedly refers to a crime called tampering with a witness, victim, or informant. This reference is potentially misleading. I think it’s unlikely the anticipated charge is actually witness tampering.

“Tampering with a witness, victim, or an informant” is the formal title of 18 U.S.C. § 1512, an obstruction of justice statute. Because that’s the title, the target letter reportedly refers to the statute that way. But the title of the statute no longer accurately describes what the statute prohibits.

Section 1512 originally was a witness tampering statute, as the title suggests. But as part of the Sarbanes-Oxley reforms in 2002, Congress amended the statute and broadened its scope to include obstruction of official proceedings by other corrupt means. The new section 1512(c) now serves as a broad, catch-all obstruction of justice provision that applies to all three branches of the federal government. Congress just never bothered to amend the title of the law.

Prosecutors have successfully used section 1512(c) to charge hundreds of the Capitol rioters, including members of the Oath Keepers and Proud Boys. The charge is that by storming the Capitol building the rioters sought to, and did, corruptly obstruct the Congressional proceeding to certify the election results.

I believe the reference to this statute in Trump’s target letter likely refers to this charge of obstruction of a Congressional proceeding, not actual witness tampering. This, too, is a charge that was widely expected and, like section 371, was one of the charges included in the January 6 Committee’s referral to the Department of Justice. Rioters have challenged the use of 1512 in connection with January 6, but so far those challenges have been unsuccessful.

It’s true Trump did not personally take part in the assault on the Capitol, but that shouldn’t matter. The statute does not require that the obstruction involved force or violence. When it comes to Trump and the senior people around him, an obstruction charge could include a number of different aspects of the attempt to overturn the election – much like the conspiracy to defraud the government charge. The pressure on state officials, sending fake electors, and the rest all could be charged as part of an overall scheme to obstruct the lawful certification of the election. In addition, Trump dispatching the rioters to the Capitol and then taking no steps to stop them for three hours could make him liable for aiding and abetting that obstruction even though he did not set foot in the Capitol himself.

Section 1512 is a twenty-year felony. It has its own conspiracy provision, section 1512(k), which provides that conspiracies to violate any portion of the statute also carry the same penalty. If one charge is conspiracy to obstruct the Congressional proceeding, expect prosecutors to charge that under 1512(k), not 371.

For more detailed discussion of this obstruction statute and how it applies to the Capitol riot, see my earlier posts here and here.

Deprivation of Rights Under Color of Law

The third charge referred to in the target letter reportedly is “Deprivation of Rights Under Color of Law.” That’s the formal title of a civil rights law, 18 U.S.C. § 242. Some later reporting has clarified that the potential civil rights charges mentioned in the target letter may actually be a related crime, 18 U.S.C. § 241.

The reference to a civil rights charge was a bit of a surprise. It was not part of the Congressional referral and has not been mentioned in a lot of the commentary about the investigation. But the charge fits the facts well.

Sections 241 and 242 both criminalize depriving a person of the enjoyment or free exercise of any right guaranteed by the Constitution or federal law. Section 241 in particular makes it a crime to conspire to “injure, oppress, threaten, or intimidate” any person in their exercise and enjoyment of rights guaranteed by the Constitution or laws.

It’s not clear exactly how Smith would frame this charge. I’m guessing it will be that Trump and others conspired to injure voters in the seven states where Trump lost but sought to overturn the results. Those voters would be injured because their votes effectively would be thrown out, depriving them of their rights to due process and equal protection. Or the charge could be that Trump conspired to injure all voters in the country by interfering with their rights to have a free and fair election and choose the representative government guaranteed by the Constitution.

Once again, such a conspiracy charge could encompass the many different aspects of the scheme to overturn the election. And because it is a conspiracy charge, success of the scheme is not required.

These civil rights charges are most often seen in cases involving things like police brutality or abuse by prison guards. But they are not limited to that, and have also been used in election crime cases. It will be interesting to see exactly how this charge is spelled out, if in fact it is included.

Section 241 is a ten-year felony. If death results from the violation, the penalty can be up to life in prison. Smith could potentially point to the deaths that resulted from the Capitol riot to argue the penalty should be even greater than ten years.

What’s Not Included

There’s no guarantee that the target letter contains an exhaustive list of all the charges that will be included in the indictment or that the reporting about the contents of the letter is accurate. And any indictment could always be superseded later to add additional charges. But assuming again these will be the charges, it’s interesting to note a couple of things that are not included.

One missing charge, rebellion or insurrection under 18 U.S.C. § 2383, makes it a crime to incite, assist, or engage in a rebellion or insurrection against the United States, or to give aid and comfort to such an insurrection. This charge would allege that Trump incited a rebellion by summoning the mob to D.C. on January 6, making an incendiary speech, and sending them to the Capitol to “stop the steal.” He then gave aid and comfort to that rebellion by failing to take any action to stop the riot for more than three hours.

This charge would face some potentially sticky First Amendment issues to the extent it relied on Trump’s speech at the Ellipse on January 6. As I wrote in this earlier post, I think those challenges could be overcome. But it may be that Smith has chosen to sidestep those difficult issues, considering he can hold Trump accountable for essentially the same conduct through other charges.  

Seditious conspiracy under 18 U.S.C. § 2384 is also absent. This charge prohibits two or more persons agreeing to overthrow, put down, or destroy by force the government of the United States. A number of the Proud Boys and Oath Keepers who participated in the Capitol riot have been convicted of this charge. This omission could be another example of Smith simply streamlining his case; for example, the “use of force” component presumably would require proof Trump actually intended the riot to take place. That could be another issue Smith concluded he does not need to take on. Although it might be gratifying to see Trump charged with sedition, he can be held fully accountable for the same conduct through other charges.

There apparently was no mention in the target letter of 18 U.S.C. § 1001, false statements, which would apply to the phony documents sent to the federal government by the fake electors. However, as discussed above, I think that will likely appear in the indictment as one object of a conspiracy under 371: that through the fake electors scheme Trump and others conspired to cause violations of the false statement statute, even if they did not actually violate that statute themselves.

Finally, there is no mention of good old wire fraud. As I wrote in this post, this is a potential sleeper charge coming out of Smith’s investigation. The allegation is based on evidence that Trump, the Republican National Committee, and the Trump campaign may have defrauded donors by raising millions of dollars to fight “election fraud” that they knew did not exist and then diverting those funds to other purposes. There have been indications that Smiths’ prosecutors are exploring those allegations, and I still hope to see those charges at some point. But that really is a distinct scheme from the efforts to overturn the election. It would make sense to bring those charges later and in a separate case, while keeping the January 6 indictment tightly focused on those events.

This is how the potential terrain looks to me for now. Unless something very unusual happens, we will see the indictment soon and can stop speculating.