Trump, January 6 and a conspiracy to overturn the 2020 election: The federal investigation, explained

A sprawling Justice Department probe into the former president and his allies yielded four criminal charges in a stunning indictment outlining a path to power at whatever cost, Alex Woodward reports

Friday 05 January 2024 21:10
<p>Donald Trump </p>

Donald Trump

A former president has been charged with crimes connected to his attempts to overturn the results of an American election.

The federal investigation into the efforts from Donald Trump and his allies to subvert the outcome of the 2020 presidential election has yielded four criminal charges in a 45-page indictment, outlining three alleged criminal conspiracies and the obstruction of Joe Biden’s victory and detailing a multi-state scheme built on a legacy of lies and conspiracy theories to undermine the democratic process.

A charging document under US Department of Justice special counsel Jack Smith follows a grand jury vote to indict Mr Trump after months of evidence and witness testimony. A trial date has been set for 4 March, 2024 in Washington DC.

Mr Trump and 18 co-defendants are separately charged in Georgia in a sprawling racketeering case outlining the multi-state scheme to pressure state officials and then-Vice President Mike Pence to subvert election results against the will of Georgia voters.

The indictments follow a separate, lengthy House select committee investigation into the events surrounding and leading up to the attack on the US Capitol on 6 January 2021, including a series of blockbuster public hearings laying out evidence and witness testimony describing the depth of Mr Trump’s attempts to remain in office at whatever cost.

That panel’s final 845-page report provides a detailed account of the former president’s refusal to cede power – regardless of the outcome – while privately acknowledging that he lost, as his baseless “stolen election” narrative fuelled his supporters to riot in the halls of Congress, an argument that also bolstered his second impeachment in the House of Representatives.

The former president has demanded broad “immunity” from criminal prosecution in the election subversion case, a question that is likely to be considered by the US Supreme Court, after US District Judge Tanya Chutkan asserted that the presidency did not bestow on him “the divine right of kings” to evade criminal accountability.

Who is under investigation?

The Justice Department’s investigation builds on the years of work from federal prosecutors to investigate more than 1,000 people in connection with the January 6 attack on the US Capitol, fuelled by the former president’s ongoing false claims that the election was rigged against him.

A resulting indictment lists six unnamed co-conspirators who are likely to include Trump-connected attorneys and former administration officials and advisers, including former attorneys Rudy Giuliani, Kenneth Chesebro, John Eastman, Sidney Powell as well as former Justice Department official Jeffrey Clark.

Prosecutors have also talked to a number of chief aides and officials in Mr Trump’s circle, including former Vice President Mike Pence, former White House chief of staff Mark Meadows, former White House counsel Pat Cipollone, his former deputy Pat Philbin, and former national security adviser Robert O’Brien, among several others.

They also have spoken with Georgia secretary of state Brad Raffensperger, who was on the other end of a call with Mr Trump demanding that the state’s top elections official “find 11,780 votes” – enough for him to overturn Mr Biden’s victory in the state.

That call, which was taped, also is at the center of a separate investigation from Fulton County district attorney Fani Willis into election interference in the state.

Arizona – ground zero for an election denialism movement that gave rise to leading GOP candidates for the top three statewide offices, including failed candidate for governor Kari Lake – was a focal point for the Trump campaign and his allies, who filed several lawsuits against the state and some counties in an attempt to overturn the lawful results. Mr Biden won the state by roughly 10,000 votes.

Former Trump attorneys John Eastman and Rudy Giuliani speak to the former president’s supporters in Washington, DC, on 6 January 2021.

Federal prosecutors have talked to former Arizona governor Doug Ducey, who silenced a call from Mr Trump while Mr Ducey was in the middle of certifying his state’s election results – a process that was being live-streamed and carried across news outlets.

Mr Smith’s office also subpoenaed the Office of the Arizona Secretary of State and has met with top elections officials in Wisconsin, New Mexico and Pennsylvania.

Prosecutors also have interviewed Michigan secretary of state Jocelyn Benson, whose office provided a tranche of documents that included communications between the state’s election officials and Mr Trump’s former lawyers and members of his campaign as the former president’s allies targeted the critical battleground state.

Central to the investigation is whether Mr Trump knew that he lost but pressed ahead with spurious efforts to overturn results anyway, with federal prosecutors reportedly speaking to his son-in-law and former adviser Jared Kushner and former communications directors Hope Hicks and Alyssa Farah Griffin with those questions in mind.

What charges does Trump face?

The former president has been charged with four crimes, including conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct an official proceeding and conspiracy against rights.

The indictment bases those charges around Mr Trump’s lies and knowledge of his “deceit” about the election’s outcome, his campaign’s attempts to pressure state officials and push false slates of electors to obstruct the certification of the results, a failed attempt to persuade Mr Pence to refuse the outcome and Mr Trump’s failure to stop a mob of his supporters from breaking into the Capitol.

A mob of Donald Trump’s supporters breached the US Capitol on 6 January 2021, fuelled by a baseless narrative that the 2020 election was stolen from him.

In May 2020, with the presidential election still months away, Mr Trump said it would be “rigged” against him if he were to lose. That June, he said the election would be the “scandal of our times”, called it “inaccurate and fraudulent” and the “greatest election disaster in history”. Not a single ballot had yet been cast.

His own Justice Department, close advisers and campaign found no evidence of widespread voter fraud and dozens of lawsuits filed by his campaign and allies to overturn results were withdrawn or dismissed, while his attorneys and the right-wing network amplifying their false claims face massive defamation lawsuits from the voting machines companies and election workers at the centre of them.

Obstruction

The crime of obstruction of an official proceeding has already been brought against hundreds of people in connection with the attack on the US Capitol on 6 January 2021.

The House select committee and a federal judge who was involved in cases stemming from its inquiry previously argued that there is evidence that Mr Trump sought to corruptly obstruct the certification of electoral college votes in Congress – a crime punishable by up to 20 years in prison, if convicted.

Then-President Trump exploited the violence at the Capitol, fuelled by his ongoing and baseless narrative that the election was “stolen” from him, by calling on lawmakers to pause the certification of the election results, according to the indictment.

Conspiracy to defraud the United States

Mr Trump’s efforts through his legal team and his inner circle to block the certification of Mr Biden’s victory in states that he lost, while falsely claiming widespread voter fraud and manipulation had stolen the election from him, form the basis for that charge in the federal indictment against him.

The former president also is charged under this statute in the Mar-a-Lago documents case, where he is accused of using a lawyer to lie to the Justice Department.

The indictment outlines Mr Trump’s efforts to push election officials in battleground states that he lost – Arizona, Georgia, Michigan, Pennsylvania and Wisconsin – to subvert election outcomes, then advance a bogus “alternate” elector scheme to transmit false slates of electors to Congress.

In July, Michigan attorney general Dana Nessel charged 16 “fake” electors in that state, marking the first criminal charges brought against so-called “alternate” electors who sought to overturn 2020 results. In December, prosecutors in Nevada also brought criminal charges against several state officials involved with the scheme.

Mr Trump allegedly leveraged the Justice Department to promote the scheme and pressured Mr Pence to fraudulently alter the election’s outcome by rejecting the results on January 6, according to the federal indictment.

Conspiracy against rights

A crime of conspiracy against rights invokes Section 241 of Title 18 of US Code, a law that dates back to bedrock civil rights protections in the Reconstruction era in the aftermath of the Civil War. It carries a prison sentence of up to 10 years.

It was among criminal codes under the Enforcement Acts, also known as the Ku Klux Klan Acts, designed to protect Americans’ civil rights enshrined under then-newly enacted 13th, 14th and 15th amendments – allowing the federal government to protect the rights of enfranchised Black people to vote, hold office, serve on juries and receive equal protection under the law.

Section 241 criminalises conspiracies to “injure, oppress, threaten, or intimidate any person” from exercising such rights.

Is there a case for insurrection?

After delivering remarks to a rally of his supporters while a joint session of Congress convened to certify 2020 election results, a speech that allegedly incited his supporters to storm the Capitol, then-President Trump stood by for 187 minutes before he told them to go home.

The House select committee unanimously agreed that Mr Trump should be charged for inciting an insurrection and giving aid or comfort to insurrectionists – a rare and severe charge that prosecutors will approach only with extreme caution, if they decide to bring it at all.

A conviction on that charge mandates a sentence of up to 10 years in prison. It is not included in the indictment against him and none of the more than 1,000 people arrested in connection with the attack are facing this charge.

Mr Trump faces lawsuits in more than a dozen states challenging his eligibility for office under the scope of the 14th Amendment, which prohibits anyone who has sworn an oath to uphold the Constitution and “engaged in insurrection or rebellion” from holding public office.

The amendment – issued in the aftermath of the US Civil War to bar former Confederates from office and ensure equal protection under the law – does not require a conviction of insurrection, nor does it define what it means or what it means to engage in one.

This story was initially published on 19 July, 2022 and has since been updated with developments.

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