Deadline for Trump to give evidence in Jan 6 probe passes as third indictment looms

Grand jurors could be asked to vote on an indictment next week

A midnight deadline for Donald Trump to signal his intent to testify before a Washington, DC grand jury hearing evidence against him has come and gone, moving the twice-indicted ex-president a step closer to facing yet another set of criminal charges stemming from his effort to remain in office against the will of voters after losing the 2020 presidential election to Joe Biden.

On Tuesday, Mr Trump publicly acknowledged receipt of a so-called “target letter” from the office of Jack Smith, the Department of Justice special counsel who is charged with overseeing multiple investigations into the former president’s conduct.

Mr Smith, who in June obtained a 38-count indictment against Mr Trump and longtime aide Walt Nauta arising out of a probe into the ex-president’s alleged unlawful retention of national defence information at his Palm Beach, Florida home, has also been presenting evidence to a grand jury in the nation’s capital that has been focused on the events leading up to the Jan 6 attack on the Capitol, including Mr Trump’s efforts to overturn his loss to Mr Biden.

According to sources familiar with the matter, the letter to Mr Trump informed him that the department is considering charging him with conspiracy to defraud the United States, obstruction of an official proceeding and deprivation of civil rights under colour of law, and set a midnight Thursday deadline for the ex-president to say whether he would appear before the grand jury to give evidence on his own behalf.

While the first two potential charges are brought frequently in federal court and have been used against a significant number of the hundreds of defendants who’ve faced charges for participating in the Capitol attack, the third potential charge – deprivation of civil rights under colour of law – would be brought under an 1871 statute first enacted for use against the Ku Klux Klan during Reconstruction.

While that century-old statute was first enacted to give the government tools to fight the Klan’s racist terrorism in the post-Civil War era, in modern times it has routinely been deployed by prosecutors in cases of voter suppression or election fraud.

A member of the ex-president’s legal team contacted by The Independent did not say whether Mr Trump would indeed testify, but it is highly unlikely that he would do so since his answers before the grand jury could be used against him.

Grand jury probe examines Trump’s involvement in fake elector scheme and pressure campaign against Mike Pence

The deadline for Mr Trump to avail himself of the invitation to appear before the grand jury, that could soon add significantly to the legal burden he is facing as he seeks his party’s nomination in next year’s election, comes as prosecutors have continued to present evidence pertaining to the ex-president’s actions before and during the Capitol attack.

A crowd of Trump supporters temporarily interrupted the joint session of Congress at which the electoral votes cast in line with voters’ preferences were opened and counted under the supervision of then-vice president Mike Pence.

Mr Pence, who was forced to retreat to an underground parking area while a riotous mob rampaged through the building and called for him to be hanged, is one of the numerous witnesses who have given evidence under questioning from Mr Smith’s team.

In April, he testified for more than five hours regarding his interactions with Mr Trump in the period leading up to the joint session, though a federal judge ruled that he did not have to give evidence on anything pertaining to his actions while presiding over the Senate or the January 2021 joint session.

Prosecutors have been questioning witnesses and gathering evidence to shed light on what Mr Trump knew, said and did in the period between the 3 November 2020 general election and the January 2021 Capitol attack.

In particular, they have been attempting to elicit answers from witnesses regarding what Mr Trump knew about efforts being made on his behalf to submit forged electoral college certificates indicating he had prevailed in swing states that were actually won by Mr Biden to the National Archives and to Mr Pence in his role as president of the Senate.

They have also been investigating the pressure campaign the former president mounted to convince the then-vice president that he had the power to unilaterally disregard the legitimate electoral certificates in favour of the fake ones as a way to declare himself and Mr Trump victorious even though they had not won the election.

Prosecutors have also reportedly questioned multiple elected officials from swing states won by Mr Biden, including Georgia secretary of state Brad Raffensperger, who Mr Trump infamously pressured to “find” enough non-existent votes to reverse his loss in a recorded phone call that was first reported by The Washington Post.

A subpoena to Mr Raffensperger’s office demanded that he turn over election-related CCTV footage from State Farm Arena, the Atlanta sports venue that was used as a polling location and ballot counting site.

Prosecutors sought testimony from Trump’s inner circle in Jan 6 probe

In addition to Mr Pence, Mr Smith’s team has also questioned multiple former Trump administration officials who served at the highest levels.

The former senior Trump White House officials who’ve been called before the grand jury include Marc Short, a longtime aide to and confidante of Mr Pence who served as the ex-vice president’s chief of staff during the time period at issue, former White House counsel Pat Cipollone, Mr Pence’s former counsel, Greg Jacob, and ex-Trump senior policy adviser Stephen Miller.

Mr Smith’s team has also compelled testimony from Jared Kushner, Mr Trump’s son-in-law who served in the White House and on Mr Trump’s 2020 campaign as a senior adviser, former counsellor to the president Hope Hicks and Mark Meadows, the ex-North Carolina congressman who served as Mr Trump’s final White House chief of staff from April 2020 through January 2021.

The Independent has previously reported that Mr Meadows has been testifying pursuant to a cooperation agreement with prosecutors.

Even as recently as Thursday afternoon, Mr Smith’s team was still questioning one ex-White House staffer, ex-special assistant to the president and deputy advance director William Russell.

Mr Russell, who still serves as one of Mr Trump’s personal aides, was making a repeat appearance before the grand jury, according to sources familiar with the matter who asked not to be identified because grand jury proceedings are secret. It is understood that prosecutors also intended to spend part of Thursday questioning a former Trump campaign staffer who specialised in election data analysis. 

Although prosecutors could have asked grand jurors to vote on whether to approve an indictment of the ex-president this week, it is understood that prosecutors are more likely to take that final step on either Tuesday or Thursday of next week, the two days on which the grand jury is scheduled to meet.