Categories: Politics

Jack Smith narrows possible charges against Trump to the essentials. That’s a good thing

(Alex Brandon/AP)

Jack Smith narrows possible charges against Trump to the essentials. That’s a good thing

Doyle McManus

July 23, 2023

We don’t know what specific charges special counsel Jack Smith will pursue if former President Trump is suspected of attempting to overturn the 2020 election. We can’t even be sure there will be an indictment, although it appears Smith sent a targeted letter to Trump last week.

But thanks to individuals briefed on the matter, presumably Trump’s leaky lawyers, we know what federal statutes are likely to form the basis of Smith’s case, and they suggest what some of his charges will be.

According to several news organizations, the target letter lists three laws that would allow Smith to accuse Trump of leading a massive conspiracy to fraudulently overturn President Biden’s election. Alternatively, they would allow Smith to charge the former president with a limited number of inappropriate acts for the same purpose.

I spoke to former prosecutors and attorneys last week, and they all had the same advice for Smith: make the case streamlined, focused, and clear.

Go for the simplest charges you can, said former federal prosecutor Paul Rosenzweig. Focus on actions that are easily and directly related to Donald Trump.

Keep it simple, silly, repeated Norman Eisen, a former lawyer associated with the Brookings Institution. Don’t try to cram it all in. You don’t want to risk confusing a judge or jury.

Trump’s attempt to block Biden’s victory included a long list of potentially illegal acts.

The then president slammed officials in states he lost to declare him the winner. He asked the Georgia Secretary of State to find 11,780 votes, the number he needed to win.

Trump and his allies developed a plan to present fake ballot certificates to Congress to replace Biden’s real electoral votes.

And he encouraged his supporters to march to the Capitol and fight like crazy on January 6, 2021, the day Congress would ratify Biden’s victory.

That’s a lot of potential charges, possibly too many for a jury to focus on. Smith’s target letter suggests he’ll likely settle for a shorter list.

Let’s take the three statutes sequentially, starting with conspiracy to defraud the United States, which basically means trying to dishonestly interfere with government functions.

Case in point: the bizarre fake voter scheme, in which GOP activists in eight states presented themselves as legitimate voters, even though Biden had won the most votes. The plot failed, but it was central to Trump’s larger attempt to nullify Biden’s victory.

It shouldn’t be too difficult to convince a jury that the plan qualified as deliberate fraud.

The activists declared themselves to be their country’s true voters in official-looking statements sent to then-Vice President Mike Pence in his role as Senate President. Those documents can now serve as damning Evidence of an attempt to defraud the United States.

In addition, Republican National Committee Chair Ronna McDaniel told House investigators on Jan. 6 that Trump personally asked her to recruit alternate voters as proof that the president was directly involved.

The second statute on Smith’s list prohibits obstruction of federal proceedings. That would likely lead to charges targeting Trump’s efforts to block Congress from certifying Biden’s election on January 6, including his relentless pressure on Pence to halt or delay the process.

The Justice Department charged more than 300 of the January 6 rioters for this offense. Many of the defendants said they raided the Capitol to try to disrupt the certification; some believed they were on Trump’s best behavior. It only seems fair to subject Trump to the same scrutiny.

It’s probably a stronger indictment against Trump than against the rioters, said Donald B. Ayer, a former top Justice Department official in the George HW Bush administration.

The third statute prohibits any conspiracy to deprive people of their constitutional rights, including the right to vote and have their votes counted. It has been used to prosecute officials who attempted to rig elections or interfere with vote counting.

According to some lawyers, this statute could apply to almost any illegal action Trump took to change the outcome of the election. The challenge for Smith will be to narrow it down to a few easily demonstrable counts.

What’s missing from this list? Incitement to riot or incitement to an uprising.

That’s probably because those allegations are difficult to prove and can be a distraction in court.

A dedication tax causes problems with the First Amendment, Ayer said. And an insurrection charge involves a lot of complexity, starting with the definition of insurrection.

That suggests Smith is already doing what former prosecutors hoped: to keep the case focused on a few charges that could be relatively easy to prove.

There is also time pressure at work, Rosenzweig added. Part of the incentive to keep it simple is to get it done before the presidential election.

If the case gets to a judge who wants to act quickly, he said, he could see it come to trial in May or June.

That will be the end of next year’s primary season, and around the same time Trump will be tried for hoarding classified documents at his estate in Mar-a-Lago. It’s going to be a busy spring.

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