Now that a third indictment against Donald Trump, involving his attempts to stay in power after losing the 2020 election, seems highly likely, today’s newsletter will cover three big questions about the case.
One, what would be the details of such an accusation? Two, would an indictment include important new evidence or focus on information that is already known? Three, what are the chances that Trump will one day face prison time?
Yesterday, Trump said he received a letter confirming he was a target in the federal investigation into his attempts to stay in power after the 2020 election, including any role in inciting the Jan. 6 attacks. Such a letter is often a sign of impending prosecution, my colleague Charlie Savage wrote. Any charge will require months to work through the legal system.
On what grounds could Trump be impeached? Several possibilities exist: his attempts to obstruct congressional proceedings on January 6, 2021; possible fraud related to fundraising; and efforts to recruit so-called fake voters from states he narrowly lost. (Hours after Trump revealed the letter, Michigan authorities charged 16 people in the fake voter fraud.)
We know only a little about where the prosecutors are focusing, and that information comes from the letter to Trump. He cited statutes that could apply in a prosecution, including a potential charge of conspiracy to defraud the US and a broad charge related to a violation of rights.
2. New information?
Without seeing the evidence, experts aren’t sure how strong the case is against Trump. In the investigation of classified documents, investigators uncovered new evidence, including photos of documents in a bathroom at Trump’s Florida home and Trump suggesting on recording that he knew he shouldn’t have the documents. So far, the public evidence about Trump’s attempts to cling to power is less explicit.
Consider Trump’s involvement in the January 6 riots: He made suggestive comments, including earlier that day at a rally in Washington. But none of them were explicit orders for an attack, and he eventually encouraged his followers who had breached the Capitol to disperse.
Trump “is often all over the place and yet he’s kind of careful not to cross certain lines,” said my colleague Maggie Haberman, who covers Trump. “At her Ellipse rally on January 6, she told people to go ‘peacefully and patriotically’ but also led them to the Capitol with doomsday language about the election. Often the people around you understand the implications of your words, even when you are not being direct.”
(He’s also tried to reframe January 6 in a more positive light, Maggie explained.)
If investigators have evidence that more directly links Trump to potential charges, we’ll find out in the coming days or weeks, if an indictment is filed and made public.
3. The possibility of prison
In addition to this case, Trump already faces state charges in New York for falsifying business records to cover up potential sex scandals ahead of the 2016 election, as well as federal charges in the classified documents case. And Trump may face separate state charges in Georgia for his attempts to stay in power; A local prosecutor is expected to announce a charging decision soon.
Any of these cases could lead to a conviction and prison time. Or Trump could beat the charges in court.
There is another possibility that his advisers have raised: He could win the 2024 election, which could make his jail time too difficult or allow him to use the powers of the presidency to drop federal investigations and charges.
“When he was indicted in the document investigation, his advisers were blunt that in their opinion he needs to win the election as a defense against possible jail time,” Maggie wrote yesterday. “That only increases with a January 6 related indictment at the federal level.”
Circumstances put Trump’s presidential campaign in a different light. He is not running, as politicians often do, solely to push a political agenda, establish his legacy, or gain power. He is also running for self-preservation.
The United States has never faced this scenario. Experts are divided on whether and how Trump could act as president if he were sentenced to prison. No one knows for sure how the US criminal justice and political systems would handle that outcome. As Jessica Levinson, an election law expert, told The Times: “I don’t think the drafters ever thought we would be in this situation.”
More about Trump
Some Republican presidential candidates were more critical of Trump than they were of his previous legal troubles. “We can’t keep dealing with this drama,” said Nikki Haley.
Other main rivals were more quiet. Ron DeSantis said that Trump “should have acted more forcefully” against the January 6 protesters, but added: “I hope they don’t impeach him.”
The judge overseeing the classified documents case expressed skepticism about prosecutors’ request for the trial to begin in December and Trump’s desire to postpone it until after the presidential election.
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