In the two and a half years since a mob besieged the Capitol in an effort to prevent Congress from certifying Joseph R. Biden Jr.’s election victory, a wealth of evidence has emerged about Donald J. Trump’s bid to stay in power after the 2020 election.
Trump and his allies spread false claims of voter fraud, lobbied officials in states he narrowly lost, and recruited fake voter lists in those states. He urged Vice President Mike Pence to delay certifying Biden’s victory. And he called a large crowd of his supporters to march on the Capitol and “fight like hell.”
Now, it seems almost certain that Trump will face criminal charges for some of his efforts to stay in office. On Tuesday, he revealed on social media that federal prosecutors had sent him a so-called target letter, suggesting he could soon be charged in the investigation into the events that culminated in the riot.
Trump did not say what, if any, criminal charges special counsel Jack Smith specified in issuing the letter.
But since the attack on the Capitol — in part because of revelations from a House committee investigation and news reports — many legal specialists and commentators have converged on several charges that are particularly likely, notably obstruction of official process and conspiracy to defraud the government.
A person briefed on the matter said the destination letter cited three statutes that could apply in a prosecution of Trump by special counsel Jack Smith, including a possible charge of conspiring to defraud the United States.
Norman Eisen, who worked for the House Judiciary Committee during Trump’s first impeachment trial and contributed to a indictment memorandum Modeling possible charges related to Jan. 6, he said the destination letter suggested the special counsel “has more than enough evidence” to make a case against the former president.
“By leading the effort to obtain fraudulent voter certificates across the country, Trump led a conspiracy to defraud the US,” Eisen said. “And by using those forged documents to pressure Mike Pence to crash the January 6 meeting of Congress, Trump attempted to obstruct an official proceeding.”
There have also been indications that prosecutors have explored possible charges related to wire or mail fraud related to Trump’s fundraising efforts aimed at overturning the election results.
Any charges in the District of Columbia, where federal grand juries have been hearing evidence, would create additional legal danger for Trump. The Justice Department has already won guilty pleas or convictions in hundreds of cases related to the riots, suggesting a group of juries may be less receptive to him than in Palm Beach County, Florida, where he faces charges of hoarding confidential government documents at his Mar-a-Lago property.
These are some of the charges that Trump could face in the January 6 case.
Corrupt obstruction of an official proceeding
Both the House committee that examined it on January 6 and a federal judge in California who intervened in its investigation have said there is evidence that Trump attempted to corruptly obstruct Congress to certify Biden’s Electoral College victory. Low Section 1512(c) of Title 18 of the United States Code, such an offense would be punishable by up to 20 years in prison.
Prosecutors have already used that law to charge hundreds of common defendants in the Jan. 6 cases, and in April, a federal appeals court upheld the feasibility of applying that charge to the attack on the Capitol. Still, unlike common rioters, Trump did not physically participate in the storming of the Capitol.
By issuing criminal references upon completion of your investigation, the January 6 committee argued that Mr. Trump should be charged under the statute based on two sets of actions. By summoning supporters to Washington and encouraging them to march on Capitol Hill, lawmakers argued, Trump had violated that law. Trump’s lawyers would likely raise questions about whether he intended his supporters to riot in part because he also told them to protest “peacefully.”
The committee also cited Trump’s involvement in the fake voter scheme as a reason for issuing charges, pointing to his attempt to intimidate Pence into citing the existence of lists of Trump-committed voters in seven states that Biden had actually won as a basis for delaying certification of the election. The panel emphasized how Trump had been told there was no truth to his claims of a stolen election, which it said proved his intentions to be corrupt.
Conspiracy to defraud the government and make false statements
Both the California federal judge and the January 6 committee also said there was evidence that Trump violated Section 371 of Title 18which makes it a crime, punishable by up to five years in prison, to conspire with another person to defraud the government.
The basis for such an allegation would be similar: Trump’s interactions with various lawyers and aides in his effort to block the certification of Biden’s election victory, despite Trump being repeatedly told that his allegations of widespread voter fraud were unsubstantiated.
In his ruling last year in a civil lawsuit over whether the January 6 committee could obtain the emails of John Eastman, a legal adviser to Trump in his fight to overturn the election results, Judge David O. Carter ruled that the communications were more likely to involve crime, qualifying them for an exception to attorney-client privilege.
“The illegality of the plan was obvious,” he wrote. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election.”
A conspiracy to present false voters to Congress could also involve Section 1001, which makes false statements a crime punishable by up to five years in prison. In the case of the documents, Mr. Trump is charged under this statute, accused of having caused his lawyer to lie to the Department of Justice.
Mail and mail fraud
A constellation of other potential crimes also surrounded the January 6 investigation. One is wire fraud. Section 1343 of Title 18 makes it a felony, punishable by 20 years in prison, to cause money to be transferred by wire across state lines as part of a scheme to obtain money by misrepresentation or fraud. A similar fraud statute, article 1341, covers schemes that use the Postal Service.
Subpoenas issued by Smith suggest that he has been looking into Trump’s political action committee, Save America PAC. He raised as much as $250 million, telling donors the money was needed to combat voter fraud, even as Trump had been repeatedly told there was no evidence to support those claims.
The House Jan. 6 committee also suggested that Trump and his associates had defrauded their own supporters. He described how after the election, they appealed to donors up to 25 times a day to help fight the results in court and contribute to a defense fund. But no such fund existed, and they used the money for other purposes, including spending more than $200,000 on Trump’s hotel properties.
“Throughout the committee’s investigation, we found evidence that the Trump campaign and its surrogates misled donors about where their funds would go and what they would be used for,” Rep. Zoe Lofgren, D-Calif., said during a hearing. “So it wasn’t just the big lie there. That was the big scam.”
The January 6 committee and some legal commentators have also suggested that Trump could be impeached under Section 2383 of Title 18, which defines as a crime to incite, assist, “help or comfort” an insurrection against the authority and laws of the federal government. That crime, however, is rarely charged and has not been brought against any defendant from January 6 to date.
In its final report, the committee singled out five of Trump’s other allies: Mark Meadows, his last chief of staff; and attorneys Rudolph W. Giuliani, Eastman, Jeffrey Clark and Kenneth Chesebro, as possible accomplices with Trump in actions the committee said warranted a Justice Department investigation.
Luke Broadwater contributed reporting.
