Special counsel has structured Trump case to avoid risks
WASHINGTON — In accusing former president Donald Trump of conspiring to subvert American democracy, special counsel Jack Smith charged the same story three different ways. The charges are novel applications of criminal laws to unprecedented circumstances, heightening legal risks, but Smith’s tactic gives him multiple paths in obtaining and upholding a guilty verdict.
“Especially in a case like this, you want to have multiple charges that are applicable or provable with the same evidence, so that if on appeal you lose one, you still have the conviction,” said Julie O’Sullivan, a Georgetown University law professor and former federal prosecutor.
That structure in the indictment is only one of several strategic choices by Smith — including what facts and potential charges he chose to include or omit — that may foreshadow and shape how an eventual trial of Trump will play out.
The four charges rely on three criminal statutes: a count of conspiring to defraud the government, another of conspiring to disenfranchise voters, and two counts related to corruptly obstructing a congressional proceeding. Applying each to Trump’s actions raises various complexities, according to a range of criminal law experts.
At the same time, the indictment hints at how Smith is trying to sidestep legal pitfalls and potential defenses. He began with an unusual preamble that reads like an opening statement at trial, acknowledging that Trump had a right to challenge the election results in court and even to lie about them, but drawing a distinction with the defendant’s pursuit of “unlawful means of discounting legitimate votes and subverting the election results.”
While the indictment is sprawling in laying out a case against Trump, it brings a selective lens on the multifaceted efforts by the former president and his associates to overturn the 2020 election.
“The strength of the indictment is that it is very narrowly written,” said Ronald S. Sullivan Jr., a Harvard Law School professor and former public defender. “The government is not attempting to prove too much, but rather it went for low-hanging fruit.”
For one, Smith said little about the violent events of Jan. 6, 2021, leaving out vast amounts of evidence in the report by a House committee that separately investigated the matter. He focused more on a brazen plan to recruit false slates of electors from swing states and a pressure campaign on then-Vice President Mike Pence to block the congressional certification of Joe Biden’s victory.
That choice dovetails with Smith’s decision not to charge Trump with inciting an insurrection or seditious conspiracy — potential charges the House committee recommended. By eschewing them, he avoided having the case focus on the inflammatory but occasionally ambiguous remarks Trump made to his supporters as they morphed into a mob, avoiding tough First Amendment objections that defense lawyers could raise.
To be sure, experts broadly agree that Smith will have an easier time winning a conviction if jurors are convinced that Trump knew he was lying about everything. To that end, the indictment details how he “was notified repeatedly that his claims were untrue” and “deliberately disregarded the truth.”
Moreover, the indictment emphasizes several episodes in which Trump had firsthand knowledge that his statements were false. Prosecutors can use those instances to urge jurors to infer that Trump knew he was lying about everything else, too.
The indictment, for example, recounts a taped call on Jan. 2, 2021, with Georgia’s secretary of state, Brad Raffensperger, in which Trump shared a series of conspiracy theories that Raffensperger systematically debunked in detail. But on Twitter the next day, Trump “falsely claimed that the Georgia Secretary of State had not addressed” the allegations.
And on Jan. 5, 2021, Pence told Trump that he had no lawful authority to alter or delay the counting of Biden’s electoral votes, but “hours later” Trump issued a statement through his campaign saying the opposite: “The vice president and I are in total agreement that the vice president has the power to act.”
Trump, of course, did not rampage through the Capitol. But the indictment accuses him of committing other crimes — the fraud and voter disenfranchisement conspiracies — based on wrongful conduct. It cites Trump’s bid to use fake electors in violation of the Electoral Count Act and his solicitation of fraud at the Justice Department and in Georgia, where he pressured Georgia’s secretary of state, Brad Raffensperger, to help him “find” 11,780 votes, enough to overcome Biden’s margin of victory.
Proving Trump’s intent will also be key to the charges of defrauding the government and disenfranchising voters. But it may be easier because those laws do not have the heightened standard of “corrupt” intent as the obstruction statute does.
The inclusion of the charge involving a conspiracy to disenfranchise voters was a surprising development in Smith’s emerging strategy. Unlike the other charges, it had not been a major part of the public discussion of the investigation — for example, it was not among the charges recommended by the House Jan. 6 committee.
Congress enacted the law after the Civil War to provide a tool for federal prosecutors to go after Southern white people, including Ku Klux Klan members, who used terrorism to prevent formerly enslaved Black people from voting. But in the 20th century, the Supreme Court upheld a broadened use of the law to address election fraud conspiracies. The idea is that any conspiracy to engineer dishonest election results victimizes all voters in an election.
“It was a good move to charge that statute, partly because that is really what this case really is about — depriving the people of the right to choose their president,” said Robert Litt, a former federal prosecutor and a top intelligence lawyer in the Obama administration.