Former vice president Mike Pence said the president pressured him to reject the certification of the election result. And he said the president’s cabal of crackpot lawyers pressured him. They asked him to literally reject electoral votes at a ceremonial proceeding in Congress that would have thrown the U.S. House of Representatives into chaos. Now grand juries in Washington, D.C. and Fulton County, Georgia, have indicted former president Donald Trump for alleged crimes stemming from his attempt to overturn the result of the 2020 presidential election. But there is more to it than crackpot lawyers banging on tin cans. The indictments paint Mr. Trump as a serial liar willing to say just about anything to reverse his defeat.

1. Introduction

On August 1, 2023, special counsel Jack Smith filed an indictment in the United States District Court for the District of Columbia accusing Mr. Trump of conspiring to defraud the United States, conspiring to obstruct an official proceeding, attempting to obstruct an official proceeding and conspiring against the civil right of people to vote and to have their votes counted. (here) Mr. Trump is the only defendant. In a brief statement to reporters, Mr. Smith put the blame for the Capitol riot on Mr. Trump’s shoulders. “The attack on our nation’s capitol on Jan. 6, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies – lies by the defendant, targeted at obstructing the bedrock function of the U.S. government,” he said. (here) Although Mr. Trump is the only defendant, there are six unindicted co-conspirtators. What, then, are the specific charges and who are the co-conspirators?

2. The Washington Indictment

The indictment acknowledges that Mr. Trump had the right, like every American, to speak publicly about the 2020 presidential election result and even to falsely claim there had been fraud that affected the result. He was also entitled to challenge the election result through lawful means by seeking recounts, audits and filing lawsuits challenging ballots and procedures. In many cases, Mr. Trump pursued those methods. His efforts to change the outcome in any state were uniformly unsuccessful. However, the indictment asserts that, shortly after election day, Mr. Trump perpetrated three criminal conspiracies in pursuing unlawful means of discounting legitimate votes and subverting the election result.

• Count 1 – Conspiracy to Defraud the United States
  

The indictment alleges the purpose of the conspiracy was to “overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.” The conspiracy deployed the following means: (a) on the pretext of baseless fraud claims, the defendant “pushed officials in certain states to ignore the popular vote” and disenfranchise millions of voters; (b) by organizing “fraudulent slates of electors” in seven targeted states; (c) by attempting to use the Department of Justice to endorse the false claims of election fraud; (d) by pressuring the vice president to use his ceremonial role at the certification proceedings on January 6, 2021, to fraudulently alter the election results; and, (e) by exploiting the Capitol riot to levy false claims of election fraud and convince lawmakers to further delay the certification based on those claims.

• Count 2 – Conspiracy to Obstruct an Official Proceeding
  

The government relies on the same conduct asserted in count 1 to specifically allege that Mr. Trump conspired to obstruct the congressional confirmation of the election results. Included as evidence is Mr. Trump’s speech the morning before the riot when he “directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification.”

• Count 3 – Obstruction of an Official Proceeding
  

Mr. Trump is charged in this count with substantive obstruction for attempting to block Congress from certifying the electoral vote. This count has been described as the “most common felony charge” used against the rioters who stormed the Capitol building on January 6, 2021. (here)

• Count 4 – Conspiracy Against Rights
  

This count alleges that Mr. Trump was part of a joint effort to “injure, oppress, threaten, and intimidate” people in the exercise of a right secured to them by the constitution or federal laws – that is, “the right to vote, and to have one’s vote counted.” The charge is based on a law passed after the Civil War when white vigilante groups such as the Ku Klux Klan terrorized emancipated black southerners who sought to exercise their rights under the reconstruction amendments to the constitution. (here)

The indictment lists six unindicted co-conspirators. Political pundits were quick to identify them but for one, co-conspirator 6. Over the past two weeks the co-conspirators have either admitted their identity, such as Rudy Giulini, or their identities have been reasonably well established based on the content of the indictment and other sources.

• Co-conspirator 1 is described as “an attorney who was willing to spread knowingly false claims and pursue strategies that the Defendant’s 2020 re-election campaign attorneys would not.” The description identifies Rudy Giuliani, one of Mr. Trump’s former lawyers, who figured prominently in the Big Lie that I discussed in a previous post to On The Wire. (here)
• Co-conspirator 2 is described as “an attorney who devised and attempted to implement a strategy to leverage the Vice President’s ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election.” This person is John Eastman, a former law professor, who is facing disbarment in California that was the subject of my recent post to On The Wire. (here)
• Co-conspirator 3 is described as “an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded ‘crazy’. Nevertheless, the Defendant embraced and publicly amplified Co-Conspirator 3’s disinformation.” This co-conspirator is Sidney Powell who was also the subject of a previous post to On The Wire. (here)
• Co-conspirator 4 is described as “a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.” It was widely assumed when the indictment was made public that this official is Jeffrey Clark. Mr. Clark is also an attorney.
• Co-conspirator 5 is described as “an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.” This co-conspirator is Kenneth Chesebro.
• Co-conspirator 6 is described as “a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.” Although the identity of co-conspirator 6 was initially “shrouded in mystery”, it now appears to be generally accepted that co-conspirator 6 is likely Boris Epshteyn. Mr. Epshteyn is also a lawyer. (here and here)

None of the co-conspirators are named as co-defendants although damning evidence is cited in the indictment. In a piece published by Lawfare the day the indictment was announced, six commentators suggested the rationale for not charging the co-conspirators is “likely because prosecutors wanted to focus on Trump individually in this case, both for reasons of timing and because of him being a former president.” (here) The indictment alleges Mr. Trump and the co-conspirators spread “prolific lies” about election fraud with knowledge of the “falsity” of their claims. The indictment lists eight people, groups of people or institutions who told Mr. Trump his claims were untrue including former vice president Pense, the director of national intelligence and senior White House attorneys. Despite Mr. Trump being informed that his claims were false, he continued to spread lies including that more than 10,000 dead people voted in Georgia, there were 205,000 more votes than voters in Pennsylvania and there was a “suspicious vote dump” in Detroit, Michigan.

In a guest essay published by The New York Times on August 2, 2023, Randall D. Eliason described the charging decisions in the indictment as “smart lawyering” by Mr. Smith. (here) “The beauty of this indictment is that it provides three legal frameworks that prosecutors can use to tell the same fulsome story,” Mr. Eliason said. “It will allow prosecutors to put on a compelling case that will hold Mr. Trump fully accountable for the multipronged effort to overturn the election. At the same time, it avoids legal and political pitfalls that could have delayed or derailed the prosecution.” Although the government appears to have sufficient evidence to charge the unindicted co-conspirators, Mr. Smith made a “smart tactical decision” not to. “Proceeding against Mr. Trump alone streamlines the case and gives Mr. Smith the best chance for a trial to be held and concluded before the 2024 presidential election,” Mr. Eliason concluded.

3. The Georgia Indictment

Late last night a grand jury in Fulton County, Georgia, returned a 41-count indictment charging Mr. Trump and eighteen co-defendants with orchestrating a criminal enterprise in violation of Georgia’s RICO (Racketeer Influenced and Corrupt Organizations) Act. (here) The co-defendants include five of the unindicted co-conspirators in the Washington indictment – Mr. Giuliani, Mr. Eastman, Ms. Powell, Mr. Clark and Mr. Chesebro. At the core of the 98-page indictment is the allegation that Mr. Trump and the other defendants refused to accept that he lost the 2020 election and “knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.” Described as “unlike anything else pending against Trump in the scope of its allegations” the indictment reaches beyond Fulton County “charging a pattern of activity that took place in other counties in Georgia and in numerous other states across the country.” (here) It mingles local activity like terrorizing election workers with high politics in the White House. It asserts that members of the criminal organization engaged in acts as diverse as forgery, influencing witnesses and computer theft. It is sprawling in scope. (here)

The Georgia RICO Act dates from 1980 and is broader than the corresponding federal statute. (here) It provides a vehicle for prosecutors to thread together distinct events that may otherwise appear to be unconnected. For example, an event such as the alleged data breach in Coffee County when Mr. Trump’s allies obtained access to voting machines in an attempt to show they were rigged acquires heightened significance when linked with statements made by Mr. Guiliani to the Georgia legislature. Although most often associated in the public consciousness with the prosecution of organized crime syndicates, it has been used in a variety of cases such as the prosecution of thirty-five Atlanta Public Schools educators charged in a cheating scandal and a married couple indicted for providing illegal dental services and fraudulently billing insurance companies. A violation of the statute is a felony punishable by a prison term of 5-20 years. Writing for The Atlantic, David A. Graham said the comprehensive scope of the indictment has allowed Fulton County District Attorney Fani Willis to offer, “a fuller picture of Trump’s attack on American democracy than any other indictment so far.” (here)

4. Conclusion

What, then, is the overarching allegation in the two indictments? The Washington indictment charges Mr. Trump with conspiracy to defraud the United States by using “dishonesty, fraud, and deceit” to obstruct the government function of certifying the result of the election. The Georgia indictment charges Mr. Trump in twelve counts with a variety of crimes in addition to the racketeering charge including the offences of solicitation of violation of oath by a public officer, conspiracy to file a document containing a false statement in a court of the United States and knowingly making a false statement to Georgia Secretary of State Brad Raffensperger. It is the element of dishonesty that courses through these allegations. It is dishonesty that lies at the heart of the Trump indictments. That may not be a problem for Mr. Trump as he stumps for campaign contributions. But it will be his biggest problem in the courtroom.