Former President Donald J. Trump has been accused of conspiring to subvert American democracy by the special counsel, Jack Smith. In an unprecedented move, Smith has charged Trump with three different sets of charges, utilizing novel applications of criminal laws to maximize the chances of securing a guilty verdict.
Legal experts have praised Smith’s strategic choices in the indictment, noting that the multiple charges provide him with backup options in case one charge is struck down on appeal. The indictment focuses on three criminal statutes: conspiring to defraud the government, conspiring to disenfranchise voters, and obstructing a congressional proceeding in a corrupt manner. Each charge presents its own complexities, but together they paint a comprehensive picture of Trump’s alleged efforts to overturn the 2020 election.
Smith’s indictment carefully avoids potential legal pitfalls and defenses. He acknowledges in the preamble of the indictment that Trump had a right to challenge the election results in court, but draws a distinction between lawful challenges and the use of “unlawful means of discounting legitimate votes and subverting the election results.” By doing so, Smith avoids charging Trump with inciting an insurrection or seditious conspiracy, which could raise First Amendment objections from defense lawyers.
The indictment also focuses on specific aspects of Trump’s actions, such as the plan to recruit false electors and pressure Vice President Mike Pence to block the certification of President Joe R. Biden Jr.’s victory. Smith chooses not to charge Trump’s associates as co-conspirators, leaving open the possibility of future indictments or a faster legal process by focusing solely on Trump.
One of the charges brought against Trump, corrupt obstruction of an official proceeding, has already been used against hundreds of Jan. 6 rioters. Most judges have upheld the use of this statute, but there is a possibility that the Supreme Court could take up a rioter’s case and narrow the scope of the law, which could impact the case against Trump.
Proving Trump’s intent will be crucial in securing a conviction. While some argue that the prosecution needs to show Trump knowingly lied about voter fraud, experts believe that proving Trump knew he was lying about certain aspects of the election will be sufficient. Instances such as Trump’s false claims about the Georgia secretary of state’s response to allegations and his contradictory statements regarding Vice President Pence’s authority will be used to argue that Trump knowingly spread baseless information.
The charges of defrauding the government and disenfranchising voters have lower standards of intent, making them potentially easier to prove. Court rulings have established that evidence of deception or dishonesty is sufficient for these charges. The indictment highlights Trump’s involvement in the fake elector schemes as well as other forms of trickery, making it difficult for Trump and his co-conspirators to argue that they believed their actions were legal.
As the case against Trump progresses, it will be interesting to see how these strategic choices by Smith shape the outcome of the trial. The indictment’s narrowly written focus and careful selection of charges aim to present a strong case against Trump while avoiding potential legal challenges.