On Aug. 1, the Department of Justice filed an indictment against former President Donald Trump concerning his attempts to remain in power despite losing the 2020 presidential election — efforts that culminated in obstructing the counting of electoral votes on Jan. 6, 2021, the indictment charges.
The grand jury indictment details allegations of criminal conspiracies, “built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud,” that “targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election.”
The indictment provides an analysis of the false election fraud claims made by Trump, saying “the Defendant knew that they were false” and had been “notified repeatedly that his claims were untrue — often by the people on whom he relied for candid advice on important matters, and who were best positioned to know the facts.”
Jack Smith, the special counsel who filed the case in U.S. District Court for the District of Columbia, said in a statement that the Jan. 6, 2021, attack on the U.S. Capitol “was an unprecedented assault on the seat of American democracy” and that “it was fueled by lies” by Trump.
Smith added that the law enforcement personnel who defended the Capitol that day were “heroes” who “put their lives on the line to defend who we are as a country and as a people.”
Since the attack, “the Department of Justice has remained committed to ensuring accountability for those criminally responsible for what happened that day,” Smith said. “This case is brought consistent with that commitment and our investigation of other individuals continues.”
Here, we answer some questions about this indictment against Trump, the third indictment against the former president and the second on federal criminal charges.
What are the charges against Trump?
The indictment includes four federal counts against Trump:
- Count one: conspiracy to defraud the United States, a violation of 18 U.S.C 371
- Count two: conspiracy to obstruct an official proceeding, a violation of 18 U.S.C. 1512 (k)
- Count three: obstruction of and attempt to obstruct an official proceeding, a violation of 18 U.S.C. 1512 (c)(2),2
- Count four: conspiracy against rights, a violation of 18 U.S.C. 241
If found guilty of the first count, Trump could be fined, imprisoned up to five years, or both. “If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor,” the federal statute states.
A conviction on the second and third counts, which are related and fall under the same statute, are punishable by a fine and/or not more than 20 years in prison. And for the fourth count, the former president could be fined and/or imprisoned for a maximum of 10 years.
What does the indictment allege?
The indictment includes five sections outlining the “manner and means” in which Trump is alleged to have conspired “to impair, obstruct, and defeat” the proper certification of Electoral College votes “through dishonesty, fraud, and deceit.”
According to the indictment, Trump used “the pretext of baseless [election] fraud claims” to push state legislators and election officials in swing states “to ignore the popular vote” by dismissing “legitimate electors” who were selected to submit the Electoral College votes of their state in favor of Joe Biden. Trump and others attempted to substitute them with a slate of “illegitimate electors” who would switch their state’s electoral votes to Trump, thereby “disenfranchis[ing] millions of voters.”
The indictment alleges that Trump and his co-conspirators organized the formation of fraudulent electors from seven states — Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin. Those bogus electors sought to “mimic” the lawful procedures of the legitimate electors and cast fraudulent votes for Trump, and they signed “certificates falsely representing that they were legitimate electors.” Some of those fraudulent electors were “tricked into participating” after being told their votes would only be used if Trump campaign lawsuits were successful in reversing the official vote tally in their states. That never happened. Trump and his co-conspirators convinced these fake electors to “transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.”
The indictment alleges Trump and his co-conspirators attempted to use the Justice Department to send letters to the seven states “that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.” They also attempted to use the imprimatur of the Justice Department to “present the fraudulent electors as a valid alternative to the legitimate electors” in an attempt to convince state legislatures in those states “to convene to create the opportunity to choose the fraudulent electors over the legitimate electors.”
Trump and his co-conspirators also tried to pressure Vice President Mike Pence to leverage his “ceremonial role” overseeing the certification of the state electors on Jan. 6 to alter the Electoral College count, the indictment says. (The Constitution designates the vice president — in his dual role as president of the Senate — to “open all the certificates and the votes shall then be counted” on Jan. 6.)
Trump tried to convince Pence, based on “false claims of election fraud,” to use the fraudulent electors instead of the legitimate ones, and “send legitimate electoral votes to state legislatures for review rather than counting them.” After Pence refused, Trump “repeated knowingly false claims of election fraud to gathered supporters” in Washington, D.C., on Jan. 6 and “directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.”
When Trump supporters violently attacked the Capitol and halted Congress’ election proceedings, Trump “exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims.” Shortly after Congress resumed its joint session at 11:35 p.m., a co-conspirator — who fits the description of Trump attorney John Eastman — emailed a Pence staffer asking Pence to force Congress to “adjourn for 10 days to allow the [state] 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.”
At 3:41 a.m. on Jan. 7, Pence announced the certified results and declared Biden the victor.
Who are the co-conspirators?
The indictment lists six unnamed co-conspirators — five of whom can be readily identified by comparing details in the indictment to publicly available information, including the final report issued by the House Select Committee to Investigate the January 6th Attack on the United States Capitol.
Co-conspirator 1: Rudy Giuliani. The former mayor of New York served as one of Trump’s attorneys during the former president’s attempts to overturn the election results. In referencing Giuliani’s remarks at the Jan. 6 rally, the indictment says, “Co-Conspirator 1 told the crowd that the Vice President could ‘cast [the ECA] aside’ and unilaterally ‘decide on the validity of these crooked ballots.’ He also lied when he claimed to ‘have letters from five legislatures begging us’ to send elector slates to the legislatures for review, and called for ‘trial by combat.'”
Co-conspirator 2: John Eastman. Also a Trump lawyer, Eastman was a principle architect of the fake elector plan, according to the Jan. 6 committee report. The indictment quotes Eastman speaking at the Jan. 6 rally when referring to co-conspirator 2: “Co-Conspirator 2 told the crowd, ‘[A]ll we are demanding of Vice President Pence is this afternoon at one o’clock he let the legislatures of the state look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not.”
Co-conspirator 3: Sidney Powell. The indictment says, “On November 25, Co-conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging ‘massive election fraud’ accomplished through voting machine company’s election software and hardware.” That matches the description of a lawsuit that Powell, an attorney, filed on that date against Georgia Gov. Brian Kemp and other state officials.
Co-conspirator 4: Jeffrey Clark. The indictment describes “Co-Conspirator 4” as a “Justice Department official who worked on civil matters” who along with Trump “attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.” It says that Trump wanted to promote him to acting attorney general, but did not “only when he was told that it would result in mass resignations at the Justice Department and of his own White House Counsel.” That fits the description of Clark, based on our story about the Jan. 6 committee report.
Co-conspirator 5: Kenneth Chesebro. An attorney, Chesebro was described in the Jan. 6 committee report as being “a central player in the scheme to submit fake electors to the Congress and the National Archives.” Referring to the fake elector scheme, the report said “[m]emos by Chesebro on November 18th, December 9th, and December 13th, as discussed below, laid the plan’s foundation.” Similarly, the indictment says of the fake elector plan: “The plan capitalized on ideas presented in memoranda drafted by Co-Conspirator 5,” and it identifies the dates of the memos as Nov. 18, Dec. 6, Dec. 9 and Dec. 13.
Co-conspirator 6 is identified in the indictment as a “political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.” But we could not readily confirm this person’s name.
How has Trump’s campaign responded?
Shortly after the announcement about the indictment, the Trump campaign released a statement via Trump’s Truth Social account saying the new charges amounted to “election interference.”
“This is nothing more than the latest corrupt chapter in the continued pathetic attempt by the Biden Crime Family and their weaponized Department of Justice to interfere with the 2024 Presidential Election, in which President Trump is the undisputed frontrunner, and leading by substantial margins,” the statement said.
(Recent polls collected by FiveThirtyEight show Trump comfortably leading in the Republican primary race, but neck-and-neck with Biden in a hypothetical general election contest.)
The statement from the Trump campaign went on to question the timing of the indictment as politically motivated and said the legal “persecutions” of Trump were “reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes.”
“President Trump has always followed the law and the Constitution, with advice from many highly accomplished attorneys,” the statement said, and concluded, “President Trump will not be deterred by disgraceful and unprecedented political targeting!”
Trump himself also posted several messages about the indictment, including one that said, “Why didn’t they bring this ridiculous case 2.5 years ago? They wanted it right in the middle of my campaign, that’s why!”
What is the status of other Trump investigations?
Smith is also the special counsel for the investigation of Trump’s handling of sensitive classified documents after he left office. On June 13, Trump pleaded not guilty to the federal criminal charges in the indictment for that case, which is scheduled to go to trial in District Court in Florida on May 20, 2024.
Earlier this year, Trump was indicted by the Manhattan district attorney on felony charges of falsifying business records. The DA alleged the records were falsified in order to conceal hush money payments to three people alleging extramarital affairs by Trump, in furtherance of helping Trump’s presidential campaign. Trump pleaded not guilty on April 4.
A fourth indictment against Trump could come in Fulton County, Georgia, where the district attorney’s office is investigating whether Trump’s efforts to reverse the 2020 election outcome in Georgia amounted to a crime. In mid-May, the Hill reported that Fulton County District Attorney Fani Willis asked judges in her county not to schedule trials and in-person hearings in the early part of August, in what many took as a sign that Willis will bring charges at that time.
On July 29, Willis told Atlanta’s WXIA-TV that the case is “ready to go.”
“The work is accomplished,” she said. “We’ve been working for two-and-a-half years. We’re ready to go.”
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