Just more than 2½ half years after the Jan. 6 insurrection triggered by Donald Trump, special counsel Jack Smith has indicted the former president on four charges in connection with his actions leading to and on that day. Based on the indictment itself and the mountain of other publicly available evidence, the case appears compelling. As Smith said at his post-indictment press conference, a speedy trial is imperative for the health of our democracy. To that end, he and his team have produced an indictment defined by clarity and relative simplicity.
For all the chaos Trump wrought from November 2020 to Jan. 6, 2021, Smith lays out a straightforward factual narrative of his actions. As one of us outlined in a comprehensive model prosecution memo for Just Security, Trump undertook a three-step plan to overturn the election.
Beyond the uncomplicated factual narrative, Smith has also kept the indictment as legally straightforward as possible.
First, after losing the election, Trump and his allies allegedly concocted a variety of schemes to overturn the results. Smith documents these conspiracies, which include: pressuring states to overturn the election on the basis of false claims of election fraud; utilizing the power of the Justice Department to achieve these same aims by, in part, having the department “conduct sham election crime investigations” and using its authority to “falsely” buttress the legitimacy of Trump’s schemes; and soliciting false electoral slates. These were certificates obtained from dozens of Trump-supporting electors in seven states which described the signers listed as “duly elected.” In fact, they were no such thing.
Second, as almost all of these plans failed, Trump and his team focused on one remaining avenue: using the false claims of election fraud and phony electoral slates to pressure then-Vice President Mike Pence to obstruct the constitutionally mandated congressional certification of the election Jan. 6, by either blocking Congress from recognizing Joe Biden’s win or by delaying the vote count.
Finally, after Pence refused on the morning of Jan. 6, Smith alleges, Trump took advantage of the violence at the Capitol “by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay certification based on those claims.”
Beyond the uncomplicated factual narrative, Smith has also kept the indictment as legally straightforward as possible. Although many statutes could potentially apply to this case, he charged the entire plot under just three statutes.
First, Smith details how the alleged schemes Trump embarked upon after the election and through Jan. 6 constituted a conspiracy to defraud the United States in the administration of elections under 18 USC 371, such as by pushing the aforesaid fraudulent slates and all the other alleged schemes.
For the second and third counts, Smith alleges Trump obstructed and conspired to obstruct an official proceeding of the United States government, under two different parts of 18 USC 1512, by conspiring to and interfering with the proper counting of the ballots Jan. 6. This applies to multiple alleged Trump schemes, including submitting false electors, pressuring Pence to stop or suspend the certification of the election, and exploiting the violence that day to halt the certification.
By charging Trump alone, Smith emphasizes his centrality — and keeps the indictment simple.
And by preventing the correct counting of votes, Smith charges, Trump also deprived the rights of Americans to have their votes fairly counted under a third criminal statute, 18 USC 241. Smith’s Section 241 charge is within the heartland of that statute – for more than 100 years, the Justice Department has successfully prosecuted conspiracies to prevent the proper counting of ballots in federal elections under Section 241.
Each of the charges in the indictment alleges Trump was at the heart of this effort to overturn the will of the voters. This must never be lost in the farrago of machinations in the wake of the 2020 election. By charging Trump alone, Smith emphasizes his centrality — and keeps the indictment simple.
Smith also avoids the most complicated aspects of having to prove Trump’s state of mind. The indictment alleges, and provides voluminous evidence suggesting, that Trump knew he lost the election. However, none of the statutes charged require a jury to determine this specifically. Instead, the requisite proof of criminal intent can be established simply by proving some, or all, of the following charges: Trump deceitfully attempted to get states to overturn the election results, the electoral certificates Trump utilized in his scheme were false, Trump attempted to leverage the Justice Department to use deceit to replace legitimate votes with Trump votes, Pence did not have the authority to override the electoral votes or pause the count of electors on Jan. 6, Trump exploited the violence and chaos at the Capitol on that day toward these ends, or that Trump intended to prevent the electoral votes of the American people from being counted correctly.
This approach allows Smith to present the clearest and fastest possible case to a jury, reducing the potential procedural complications and delays that come with a more sprawling case with multiple defendants. Moreover, this indictment does not prevent Smith from bringing charges against other individuals at a later date, just as he did in the recent superseding indictment in the classified documents case.
The indictment is not the end of Smith’s investigation. In fact, it has been reported that the special counsel has scheduled interviews with people such as Bernard Kerik, an associate of longtime Trump attorney Rudy Giuliani, in the coming months. It is typical for prosecutors to continue to meet with witnesses and relevant parties throughout the course of their case, past the indictment stage. And an indictment is almost never the extent of the government’s evidence in any matter.
Nevertheless, in Tuesday’s charges, Smith outlined the essential evidence as concisely as possible. The indictment is a watershed episode in the history of American democracy. It is a sobering moment, but also one that inspires confidence that our rule of law system is up to any challenge.
For all the noise that is swirling now and will, in all likelihood, continue throughout the course of this case, Smith has presented a powerful case, fulfilling his obligation to enforce the law without fear or favor. Trump, like every other citizen, will have a chance to establish his innocence in the court of law. That should happen as soon as possible for the sake of our democracy.