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Trump's J6-related indictment isn't about his words. It's about his deeds.
Jack Smith's charges against Trump for instigating a coup attempt, explained.
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Yesterday, former President Donald Trump was indicted … again. After being indicted in New York state for hush money payoffs during the 2016 election and in Florida for retaining classified documents, Trump now faces the most serious charges yet: a conspiracy to overturn the 2020 election. His Big Lie struck at the very heart of American democracy, the right of the people to select their president, and this indictment details exactly how far that conspiracy went. (Read the charging document for yourself here.)
Specifically, Trump is charged with three counts of conspiracy: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, and conspiracy against rights. Trump is also charged with obstruction of, and attempt to obstruct, an official proceeding.
Where Trump had the good fortune to draw one of his own appointees in Florida for the Mar-a-Lago documents case — a judge who has previously bent over backward to help Trump — this time, he had no such luck. This case is assigned to Judge Tanya Chutkan, an Obama appointee who has overseen several of the January 6 prosecutions and handed out some of the strongest sentences. Chutkan is also the judge who ruled against Trump in his bid to block the National Archives and Records Administration from turning over documents to the January 6 committee.
Trump has a right to lie. Disenfranchising voters is another matter.
Special Counsel Jack Smith’s indictment distills the whole of the January 6 investigation into 45 pages. The story it tells is already familiar. There is the sheer number of lies told by Trump and his allies, such as that over 10,000 dead people voted in Georgia, that there was a suspicious late-night “vote dump” in Michigan, and that Pennsylvania issued 1.8 million absentee ballots but processed 2.5 million.
Smith makes clear that the issue here isn’t Trump’s lies as such, particularly right after the election. In fact, the indictment states that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” Nor is the issue the dozens of unsuccessful court cases Trump brought. Instead, the issue is that Trump worked with his co-conspirators to disenfranchise voters by interfering with the collection, counting, and certifying of votes.
Put another way, Trump isn’t being indicted for what he said. He’s being indicted for what he did.
The indictment tells the story of the fake elector scheme, where swing states, at the behest of Trump and his conspirators, put forth GOP electors in states won by Biden. It also details the pressure put on Mike Pence to throw out the election while Trump whipped his supporters into a frenzy until they attacked the Capitol.
The indictment reveals that even after the January 6 rioters were finally cleared from the Capitol, Trump and his co-conspirators were pounding the phones and sending emails late into the evening trying to reach elected officials who would agree to block certification. Around 7 pm on the 6th, one of Trump’s co-conspirators called five US senators and a House rep, all within 20 minutes, and left a voicemail for one senator asking them to “try to just slow it down” and saying that “the only strategy we can follow is to object to numerous states.”
Even as the joint session of Congress finally met at 11:35 pm on the 6th to certify the election, one of Trump’s co-conspirators emailed Mike Pence’s counsel, urging Pence to violate the law and adjourn for 10 days to “allow the legislatures to finish their investigations as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here.”
The co-conspirators are unnamed and unindicted, which isn’t unusual and doesn’t mean they won’t be indicted later. It’s relatively easy to determine who they are, and five of the six are prominent Republican lawyers.
Co-conspirator #1 is Rudy Guiliani, who pressured several elected officials in swing states to go along with outrageous voter fraud claims like asserting dead people voted fraudulently in Arizona. GOP House Speaker Rusty Bowers testified before the January 6 committee about Guiliani’s efforts to get him to recall the state’s electors.
Co-conspirator #2 is John Eastman, the attorney who tried to give a legal sheen to the absurd argument that Pence could simply throw out the election results. Eastman now faces disbarment in California and possible criminal charges of his own.
Co-conspirator #3 is Sidney Powell, who at times exceeded even Guiliani in her outrageous claims about the 2020 election. Hope Hicks testified to the January 6 committee that Trump mocked Powell’s ideas about vote rigging as “crazy.”
Co-conspirator #4 is Jeffrey Clark. Clark became the acting head of the Department of Justice’s Civil Division in September 2020. In December 2020, well after it was clear Trump had lost, Clark proposed sending a letter to swing states saying that the DOJ had significant concerns about the election. Like Eastman, Clark now faces legal disciplinary charges.
Co-conspirator #5 is Ken Chesebro, a Wisconsin lawyer who wrote the memo about how Wisconsin and other states could put forth a fake set of electors who would vote for Trump.
Co-conspirator #6 is a political consultant who helped with the fraudulent election scheme and is the only non-lawyer on the list. The best guess as to that person’s identity right now is Mike Roman, who physically delivered the slate of fake electors to Pence. A few hours after the indictment dropped, Roman posted a picture of a football jersey with the name “Smith” and the number 6 on X/Twitter.
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It appears from the indictment that RNC chair Ronna McDaniel avoided being named a co-conspirator despite the fact she seemed to be running point on the fake elector scheme, sending Trump an email on December 14 confirming that the fake electors had voted for Trump in six contested states.
It wouldn’t be surprising or out of character for Trump to try to save his skin by throwing these people under the bus. Indeed, according to a Rolling Stone story published before the indictment came down, Trump has already floated the idea he was led astray by his attorneys and therefore can’t be held responsible for his actions. The story specifically names Eastman and Guiliani.
Now, on to the charges.
“In response, the Defendant told the VP, ‘You’re too honest’”
The first charge, conspiracy to defraud the United States, doesn’t just mean the idea of cheating the government out of money. The DOJ manual explains it also refers to actions taken to obstruct or defeat or impair the lawful function of any department of government. Attempting to stop Congress from certifying the election, be that by telling tales of voter fraud, pressuring swing-state elected officials to change votes, putting forth slates of fake electors, having a riot in the Capitol — all of these impair the lawful function of government to count and certify votes.
Where the conspiracy to defraud applies to multiple actions taken by Trump and his co-conspirators, the second count, conspiracy to obstruct an official proceeding, refers specifically to the attempt to impede the certification of the electoral count. The third count applies to Trump’s efforts to stop that certification in addition to his participation in a conspiracy with others.
The fourth count, conspiracy against rights, is the most interesting and surprising here. The law was passed just after the Civil War to protect rights under the newly-enacted 13th, 14th, and 15th Amendments. It prohibits conspiring to “injure, oppress, threaten, or intimidate” anyone exercising a right guaranteed by the Constitution or federal law. In the past, it was used to prosecute the Ku Klux Klan when they used violence to prevent Black people from voting.
Here, Smith charged that Trump worked with his co-conspirators to injure, oppress, threaten, or intimidate “one or more persons” in their exercise of rights guaranteed by the Constitution and federal laws: “the right to vote, and to have one’s vote counted.”
When phrased that way, it’s clear the actions of Trump and others were a crime against every voter. Trump sought to throw out hundreds of thousands, if not millions, of votes. He sought to have electors cast votes that did not reflect a state's popular vote. According to the indictment, he sought to have Mike Pence invalidate the entire election, and when Pence said there was no constitutional basis for him to do so, told Pence he was “too honest” and then proceeded to tweet out a call for his supporters to come to Washington on January 6.
Trump sought, in short, to rob Biden voters of the right to have their voices heard and their votes properly counted. There’s nothing more anti-democratic than that.
Trump’s (weak) defenses are political, not legal
Trump is insisting Smith’s latest indictment is election interference, in part because the charges were brought now instead of immediately after January 6. This ignores that an investigation of this scope takes months and hundreds of people. Additionally, Trump announced his re-election campaign very early, in November 2022, when he was already aware he might face charges in the classified documents case. Announcing one is running for president shouldn’t function as a get-out-of-jail-free card.
The first three counts carry the possibility of a maximum sentence of 20 years, while the conspiracy against rights has a maximum sentence of 10 years unless the conspiracy resulted in death. Given that multiple people died during and directly after the siege of the Capitol, it is arguable that this conspiracy did indeed result in death, but there’s no indication in the indictment whether Smith is pursuing that.
The right-wing defenses of Trump are predictably terrible. One of Trump’s lawyers took to CNN to say that the fake elector scheme was perfectly fine. Several of Trump’s 2024 rivals complained about the “weaponization” of the DOJ, including Ron DeSantis, who posted on X/Twitter that he hadn’t yet read the indictment but he was already sure Trump wouldn’t get a fair trial in Washington DC. Jonathan Turley, who appeared before Congress to argue that Trump shouldn’t be impeached, posted a long thread complaining that most of the indictment is protected First Amendment speech, an odd argument given much of it focuses on actions.
It is unlikely this is the last indictment Trump will face. Fulton County District Attorney Fani Willis has been investigating interference in Georgia. There, Trump called Secretary of State Brad Raffensperger asking him to “find” 11,780 votes to reverse Biden’s win in the state, pushed claims of voter fraud, and worked with others to set up a slate of fake electors. There is speculation that Willis will bring multi-state racketeering charges against Trump and Willis has hinted that indictments, should they occur, would happen yet this month.
At root, Trump disdains democracy. Nowhere is that more clear than in this indictment. No one can predict whether Trump will be convicted, nor can anyone predict what this means for the 2024 race. However, the mere existence of the indictment is a significant and necessary step forward in finally holding Trump accountable for the Big Lie.
That’s it for today
Aaron will be back tomorrow morning with a fresh podcast about Trump’s legal problems featuring Liz Dye. If you’d like to support this work and haven’t already, please consider becoming a paid subscriber. Just click the button below. Thanks!