Former prosecutor explains why Donald Trump was the main focus of the January 6 indictment

‘It’s a very considered, strategic decision to bring an indictment only against Trump,’ former prosecutor tell The Independent

John Bowden
Washington DC
Thursday 03 August 2023 00:34 BST
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Louise Thomas

Louise Thomas

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Donald Trump’s latest federal indictment is not the lengthiest of the charging documents that has come his way so far, but it may well be the most profound.

That was the reaction of legal analysts and journalists this week after Jack Smith delivered the Department of Justice’s initial charges against Mr Trump for his efforts to overturn the 2020 election, with much of his conduct in the weeks leading up to and during the January 6 attack going unaddressed in the indictment.

All in all, the twice-impeached ex-president is charged with four crimes related to the election-meddling efforts, including conspiracy to deprive Americans of their rights — a law passed as part of anti-Ku Klux Klan legislation.

What was absent from the document was a charge that many expected to see after the conclusion of the House of Representatives’ select committee investigation into the attack: A count of giving aid or comfort to an insurrection. There was no mention of that charge, or the related accusation of seditious conspiracy, which has been leveled against members of the Oathkeepers and Proud Boys.

There was also no mention of charges for Mr Trump’s long list of allies, some of whom spread conspiracy theories about the election, and other enablers who either knowingly or unknowingly pushed complete and utter falsehoods on a wide range of issues for months after their boss lost the presidential election. Notably, a number (like ex-legal counsel Rudy Giuliani) are referred to as co-conspirators, and specifically not described as “unindicted”. But the initial document charged Mr Trump and Mr Trump alone, with the entirety of its focus being on the actions of the man at the head of the table.

A former deputy assistant attorney general and federal prosecutor who analysed the indictment in an interview with The Independent said that decision was likely deliberate, to ensure that the focus of the case remained on Mr Trump’s efforts and potentially to streamline the path to trial.

“Each new defendant brings a possible doubling, if not more, of potential causes for delays,” Harry Litman explained. “It's a very considered, strategic decision to bring an indictment only against Trump. And you and I know, those people are by no means out of the woods.”

Bringing an indictment against the former president, he added, was the DoJ’s way of cutting as much of the potential delays away as possible in the hopes of getting the ex-president to trial before the 2024 election has concluded.

“It maximises the possibility of it happening quickly,” said Mr Litman. “Whereas before yesterday, it seemed doubtful, at least very tenuous, that there would be a federal trial before the election. But I think it now seems likely.”

The exclusion of (arguably) more serious charges like seditious conspiracy and giving comfort to a rebellion, he posited , was a decision made for a similar reason. By focusing on Mr Trump’s efforts to change the results and not his words themselves, Mr Litman explained, Mr Smith’s team was “attack[ing] around” any First Amendment-related defences the former president’s legal team would raise against those charges.

Mr Trump has denied guilt in all the instances where he is accused of taking illegal measures to remain in the White House, and continues to insist to this day that he is the rightful winner of the 2020 election. Vast swaths of his loyal fanbase believe the same.

The former president continues to await a decision by prosecutors in Georgia related to his efforts to change the election results in that state as well; Fulton County officials have said that a decision on that matter is coming later this month.

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