By Gabriel J. Chin
The Justice Department announced its second federal indictment of former president Donald J. Trump on Aug. 1, 2023. The charges are groundbreaking and not just because a former president is facing multiple criminal charges.
It’s because these are the first federal charges alleging a former president effectively attempted a particular kind of coup, called an auto-coup, in which he attempted to keep himself in power by illegal means.
The indictment lists four felony charges. All of them rely on the same facts and boil down to the same set of five allegations, many of which have been previously reported.
All of the charges rest on the claim that Trump and his co-conspirators knew the former president lost the 2020 election, and that his claims of fraud and voting irregularity made before and on Jan. 6, 2021 were unfounded.
Three counts in this new indictment allege conspiracies: There is conspiracy to defraud the government; to obstruct an official proceeding – in this case, counting the electoral votes on Jan. 6, 2021; and against the rights of the voters to cast ballots and have them fairly and honestly counted.
The remaining count alleges obstruction of an official proceeding – namely, tallying the electoral vote. The document states that Trump allegedly had the help of six co-conspirators, including four lawyers, a Justice Department official and a political consultant.
None of them are charged in the indictment, and they are identified by number, not name. This could mean one or more of these people are cooperating with the Justice Department, but not necessarily.
The indictment charges that all of Trump’s many claims of election irregularities “were false, and the Defendant knew that they were false.”
I am a scholar of criminal law and procedure. While Trump is facing multiple other charges, this indictment contains the most serious charges he has faced thus far.
In another case, Trump is being charged in New York with falsifying business records, which is, to some extent, a technical offense. And the Justice Department has charged him in Florida with illegally keeping national security documents, but there is no allegation they were disclosed to foreign agents or represented much more than souvenirs.
This indictment, by contrast, alleges that Trump knowingly worked to hold on to an office he knew he was not entitled to.
Breaking down the charges
In this most recent indictment of Trump, the Justice Department alleges that in November and December 2020, Trump tried to get state legislators to derail the process of certifying the election results in their states. Trump allegedly did this, for example, by asking legislative leaders to call the legislature back into session and approve a resolution that Trump, not Joe Biden, had won.
But all state legislatures certified the election results by December 2020. Trump and his allies then assembled slates of alternate electors in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin – all key states that Biden won. These self-appointed electors prepared alternate election documents to submit to Congress.
The indictment alleges that some of the fraudulent electors were told by co-conspirators that the certificates with their names and votes would be used only if Trump managed to overturn the election results in their state – an event which occurred in none of the seven states. The co-conspirators allegedly later attempted to use the certificates anyway.
Third, Trump and his allies allegedly attempted to have Justice Department officials communicate with states whose electoral votes Trump wanted. They wanted those officials to falsely state that there were active election fraud investigations pending.
Trump and his allies allegedly asked the Justice Department officials to sign a letter they had drafted that asked states to bring their legislatures back into session to reconsider the outcome of the election.
Fourth, the indictment alleges that Trump attempted to persuade then-Vice President Mike Pence that he had the right to reject Biden’s electoral votes, or return those votes to the state legislatures.
Ties to Jan. 6
And finally, the indictment accuses Trump of being responsible for some of the violence on Jan. 6, 2021, and exploiting the riot at the Capitol by urging members of Congress to delay the electoral vote count proceedings that day.
According to the indictment, Trump called followers to attend a protest rally the morning on Jan. 6, and he “directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.”
Then, the indictment continues, “the Defendant and co-conspirators exploited the disruption by redoubling efforts to levy false claims of election fraud and convince members of Congress to further delay the certification based on those claims.”
The conspiracy charges are helpful to the prosecution because under the rules of evidence, any statements made, or acts done, by a co-conspirator to further the conspiracy can be used against Trump.
So, even though Trump is the only person named and indicted in this case, a wide range of evidence from others’ actions will be available against him.
Potential time served
Trump could theoretically serve decades in prison if he is convicted of these charges.
The indictment’s first count, conspiracy to defraud the U.S., has a five-year maximum sentence. Counts 2 and 3, obstruction of an official proceeding and conspiracy to obstruct an official proceeding, carry 20-year maximum sentences.
Count 4, conspiracy against rights, normally has a 10-year maximum sentence. However, the statute provides that “if death results from the acts committed in violation of this section” the sentence may be imprisonment “for any term of years or for life,” or the person “may be sentenced to death.”
Seven people died in connection with the Jan. 6 riots, so it is likely that the question of whether the enhanced sentence is available will come up if there is a conviction. But the Justice Department under Biden has been parsimonious with the death penalty. Based on that and other considerations, it seems highly unlikely that the death penalty would be a realistic option for sentencing in this case.
Many legal questions will have to be resolved in court between the time Trump appears in a Washington, D.C., federal court, initially scheduled for Aug. 3, 2023, and whenever a jury reaches a verdict.
It is clear that a sitting president can be impeached. There are no cases of a person being charged with crimes based on their acts as president. The issue came up in the 1970s, but was rendered moot when President Gerald Ford pardoned former President Richard Nixon.
This case places Trump in a much deeper kind of new legal trouble, and the U.S. in a murky, unexplored political and legal landscape.
Gabriel J. Chin is Professor of criminal law, immigration and race and law at the University of California, Davis.
Thomas Hutson says
So, what else is new?!?
JimboXYZ says
‘Dishonesty, Fraud and Deceit’
Sounds like the Hunter & Joe Biden in the Ukraine. How come we don’t have a list of classified documents that Joe Biden had in boxes everywhere ? 5 years they stalled that IRS tax evasion scheme and then they tried to get to & past the statute of limitations. The day Biden leaves the White House, he’s going to get as good as he gives. Impeachment by the H of Reps in the same dramatic fashion as Nancy Pelosi pushed it thru in December 2019. Hard to believe that was 4 years ago, but the D’s were insurrectionists even as far back as the 2016 election . Sad we’re paying for this DC Swamp show for the last 8 years, it’s the Congressional War we can’t get out of.
Laurel says
XYZ: The article is about Trump.
@ Laurel, says
Of Course, Nothing to see here Just a Crime Syndicate in the white house! Please return to focusing on Trump so CNN and CNBC can have better ratings! Fake news media has you by the short and curlies! LOL
richard santomassino says
Again, as noted above: this article is about trump. Please leave home your smoke and mirrors!
Joey G says
Don’t forget MSNBC they are the worse. Talk about fake BS? OH MY
Jim says
Trump gets indicted for attempting to steal the election and his actions led directly to the January 6 insurrection and this is the best response you can muster?!? I don’t know if facts matter to you but everything you said in your diatribe above is false.
You might consider getting out of the Fox News bubble and try getting a more well-rounded source for information. (Oh, it’s a FACT that Fox paid $767M for LYING about the 2020 election in case you missed that little piece of information…).
It’s just a shame that you spout this garbage to the world. It will take a miracle to keep this democracy alive and healthy with idiots like you running around. Please, just get your facts right if you’re going to continue this BS!!!!
Bill C says
There’s no other way to say it. You’re brainwashed. No amount of facts and evidence will penetrate your disabled brain, “retribution” dominates your thinking. Fox News should have their broadcasting license yanked- they are nothing more than a propaganda organ for the Trump campaign, complete with jaw dropping disinformation, outrageous lies, now in an attempt to whip up another Jan. 6 style riot.
BudLite says
This exactly how I and tens of millions of conservatives feel about MSNBC and CNN and the rest of the liberal legacy news outlets you draw your opinions from. If Fox is nothing but a propaganda organ for Trump (which they are most of the time) then what would you call MSNBC or CNN? Hard Hitting Investigative News Organizations? (I can here you laughing). These two orgs are one trick ponies whose ratings are derived from bashing Trump. That’s it. The entire liberal news establishment has a HUGE credibility problem because of the lack of serious coverage of the Biden Crime Family. There is no other way to say it Bill…………….you and your political party and their policies are responsible for 80% of our country’s problems. From the Defund The Police inspired mobs of teens attacking rush hour cars sitting at traffic lights and destroying these cars for entertainment to the thousands of Tik Tok videos documenting entire Walmart Superstores being looted of every item on the shelf while store employees do nothing because theft under 900$ has been decriminalized by Democratic legislatures around the country. I’ll bet you are very proud of the fact that every major city in the US has become an open sewer trying to digest the 4.9M illegal immigrants who have arrived since Joe became president. Have you seen San Fran and L.A.? Your party is responsible for this tragedy. Stop voting for morons. You can do better. I know it.
Sherry says
@jimboxyz. . . Yawn. . . just another FOX “whataboutism” conspiracy theory. Let me help you out here: Benghazi! Benghazi! Benghazi! Blah! Blah! Blah!
This article is about twice impeached, under three criminal indictments, found “GUILTY” of sexual assault, still accused of rape, election LOSER, proven pathological liar. . . trump.
Do not come to this site and post FOX BS . . . and, then fool yourself into thinking that you have said “anything” a thinking person would consider the least bit credible.
You have a choice here. . . you can come back to “factual reality” by taking your brain back and change your news sources to those who actually publish credible facts like the Associated Press. PBS, Reuters and even the BBC. . . or, you can continue to live in the FOX silo where fear and hate is ginned up using lies and conspiracy theories every day.
In any case, at this point all you are doing is making a complete blithering fool of yourself!
Foresee says
Have you read the indictment?
https://d3i6fh83elv35t.cloudfront.net/static/2023/08/trump-indictment.pdf
Deborah Coffey says
You haven’t followed the news of the billions FOX “news” has had to pay out for LYING to the public? Turn your channel if you want TRUTH. It matters.
DaleL says
The additional charges in the Florida Documents case are that Mr. Trump attempted to destroy evidence. He is alleged to have ordered the security camera recordings deleted. Those charges are far more serious than just hoarding documents. As with Nixon, the attempted coverup is more serious than the original crimes.
Unrelated, Trump seems to have taken ancient Jewish artifacts to Mar-a-Lago. According to a recent report published on Tuesday, July 18, the Israel Antiquities Authority loaned a set of ancient ceramic oil lamps to the Trump Administration to be used for a 2019 Hanukkah celebration. The lamps were not seen at the event, and the Antiquities Authority has yet to receive them back.
My biggest issue with these most recent charges are that they should have been filed at the end of last year. Most of the facts of the case are very public. The House investigation wrapped up last year. What took DOJ so long?
Trump should come clean and reach plea deals in all these cases. He should drop out of the presidential race. In return, DOJ and the courts should place him on probation with no prison time. Trump has not shown a willingness to ever take responsibility for his actions, so I doubt that he would agree to such a settlement. He will drag all the cases out in the courts as long as he can. He will continue to claim he is the “victim” while inflaming his followers. According to a 1990 Vanity Fair interview, Ivana Trump once told her lawyer Michael Kennedy that her husband, Trump, kept a book of Hitler’s speeches near his bed. He is right out of the same mold as depicted in The Twilight Zone “He’s Alive”, season 4, episode 4. https://www.imdb.com/title/tt0734572/
What ever happens, Donald Trump cannot be allowed to ever hold any office of trust in the United States again, especially that of President.
bill says
and what about Joe Biden in bed with the communist Chinese and his son should we just ignore him selling our country down Benedic Biden there is so much diversification in this country. I can’t see us ever getting back to one nation under God with liberty and justice for all.
Sherry says
@bill. . . Please post “credentialled FACTUAL EVIDENCE” for your ridiculous claims about President Biden, otherwise you will prove yourself to be just another member of the brainwashed FOX cult.
Factual reality is available to you. . . just dig your way out of the “Alternate Reality” FOX HOLE and change your news source to fact checked APNews, PBS, BBC, Reuters, Washington Post. Do this for 2 months, and be welcomed back to “thinking” reality. Come on. . . don’t you want to be thought of as educated?
Laurel says
I am sick of hearing Republican politicians stating Trump should be let go for the good of the country. What’s good for the country is the truth and let it be known that no one is above the law here in the United States of America.
Dennis C Rathsam says
Bidens a crook, Trumps a crook, Americas screwed! But thruth be told I was better off 4 years ago. than I am today! The dire situation balloon Joe has put us in is remarkable! Interest rates are at a 40 year high! Along with the prices of everyday living. There were no drugs found in TRUMPS Whitehouse! None of TRUMPS kids is as fucked up as Bidens…. Dont forget folks Dr Jill & Joe raised him to be the man he is today! Along with impecable family values! God save the Queen, man!!!!!
richard santomassino says
Isn’t this an article about trump and his indictments? Somehow, you did not get the memo!
DaleL says
A lot of people were better off four years ago, prior to the COVID-19 pandemic. Joe Biden has four children. None of Joe Biden’s children ever served in the White House. Biden’s first wife died in a car crash. Biden has never been divorced.
Naomi Biden died in a 1972 car crash, at the age of one, with her mother Neilia.
Beau Biden survived the car crash. Beau became a federal prosecutor and served in Iraq. After military service, he was elected as the Attorney General of Delaware, twice. He died of brain cancer in 2015 at the age of 46.
Ashley Biden has dedicated her life to giving back to the under served communities. Notably, she worked for the Delaware Department of Services for Children, Youth, and Their Families for 15 years.
It is only Hunter Biden who has led a troubled life. Republicans are repeating their version of a Benghazi, Benghazi chant concerning Hunter. Repeating a lie does not alter the fact that it is a lie. During years of investigations, no evidence has emerged that Joe Biden has been involved in any of Hunter’s questionable activities.
Just a reminder as to Trump’s “morality”. He has been married three times and has cheated on every one of his wives. He is twice divorced. He ran the defunct Trump University which defrauded students. On Nov. 7, 2019, the New York Supreme Court ordered President Donald J. Trump to pay $2 million in damages “for improperly using charitable assets to intervene in the 2016 presidential primaries and further his own political interests.” The settlement required mandatory training for the three elder Trump children and imposed restrictions on Donald J. Trump.
Jim says
I’d love to see you back up your claim that Biden is a crook with some facts – not Fox talking points but actual FACTS!
I was not better off 4 years ago. Trump was president and any hope for sanity or maturity emanating from the White House was long gone! Everyone laughed at him when he gave his speech at the UN! He got along better with Putin than he did with leaders in England and Germany…. His daughter and son-in-law were “white house advisors” and Jared led the charge on blowing through untold millions (maybe billions) during the Covid pandemic. And, by the way, an untold number of Americans died from that because the “leader of the free world” would not listen to experts in science. (And, just for you, I just saw a recent study where Republicans died at a statistically significantly higher level than Democrats – just saying….).
I don’t know how you can point to Trump’s kids and say they are not f—– up! Your definition of that term is very different from mine!
But you go ahead and live in your little bubble with your buddies who believe the same BS as you. Meanwhile, I’ll live in an American where inflation is falling, the economy is going strong, we support Ukraine in their righteous war against Russia and – hopefully – we’ll get some justice against a traitorous ex-President who needs to spend the rest of his life in jail. But you don’t understand that either because you don’t operate on facts. I’ll bet you are a miserable person to be around!!!
Bill C says
Jared Kushner got a 2 Billion check from the Saudi’s. God save the Saudi Royal Family!!!!! Trump downplayed Covid, called it a hoax, because he thought it made him look bad, which resulted in an economic crash and the death of over a million Americans. Perhaps you are in love with Las Vegas style lounge act Trump performs where he reminisces about how good the old days were.
Me says
Jack Smith you rock. Thank you for all you are doing to up hold the laws of the USA which no one is above.
Eva says
AMEN!!
Robjr says
Why does a person who claims to be a billionaire need to beg others for money?
For Real says
The Fox Statioon still isn’t reporting what is actually going on. The whole station isn’t healthy for our people, our country or our democracy.
It is no different then the trash Esquire paper. Get your head out the gutter people and start listening to actual evidence and witness statements from all the Republicans that has testified before the DOJ.
Sherry says
@ For Real. . . I remember (the founder of FOX (NOT) news, Rupert Murdoch bragging over 25 years ago that he would build a media empire so “powerful” that “HE” would e the person who would choose our President. Well, we are now in that “unthinkable” place where ole Rupert just may accomplish that goal.
How very tragic for the millions of our fellow citizens who quite literally have been brain washed. . . by “anyone”. . . much less such a horrific, sinister character who rakes in multi millions of dollars while completely duping the weak minded/uneducated.
The Murdoch crime family has succeeded at putting our entire democracy in very great peril. These are indeed extremely troubling times!
Ed says
Did you know James Murdoch(son of Rupert) backed President Biden in 2020 Election? Did you know he gave 100 million dollars to to Quadrivium – nonprofit that used a large chunk to fund that campaign? James and his wife Katheryn have spent in excess 34 million fighting climate change and on and on.
Pogo says
@Sherry
Did you know?
https://www.google.com/search?q=capone+charity+in+chicago
Look on the sunny side
https://www.google.com/search?q=hitler+loved+his+dog
And so it goes…
Jonathan says
Trump is not as rich as he claims to be. He is the biggest con artist in our nations history, and he has suckers that continue to believe his lies because they never take the time to read the real facts and evidence.
All he cares about is himself and for the fools out there that thing he is there for them, good luck with that ask all those that stormed the Capitol for him and he has not bailed on out of jail or even gives too craps what their names are.
It is so so sad to see how many suckers believe all his lies and con games. In the end as it is now the truth always comes out and justice will be served.
Atwp says
Indictment, now it is prison time. The whole family should go. Santa I want to see Trump go to prison. That is my Christmas wish. Please deliver. Biden haters where is the proof of him being paid by another country?One of the loud mouths didn’t go to the testimony against Hunter yesterday. What happened? The loud mouth lying Republicans.
Ron says
So sad! How you say this is all about Trump. In addition to your comments about Fox News. Does this site ever do positive stories about republican’s or is it just one sided? You’re all so obsessed. Watching CNBC which by the way was jammed pack with complete lies on the Russian collusion and Hunter’s computer. But no reporting the facts here on this site.
The best thing for this country would be term limits for all politicians! In addition to eliminating lobbyists and having all excess political donations go to charities. Without this all politicians will be corrupted one way or the other.
Sherry says
Hey Ron, it seems you have a problem with media outlets that report actual credentialed FACTS simply because you don’t like to learn the truth.
FACT: Fox News settled a defamation lawsuit — for $787.5 million — filed by a voting-machine company that claimed it was harmed by the proliferation of baseless lies that its machines rigged the 2020 election against Trump.
FACT: A jury found Donald Trump liable Tuesday for sexually abusing advice columnist E. Jean Carroll in 1996, awarding her $5 million in a judgment that could haunt the former president as he campaigns to regain the White House.
FACT: trump is the first President to be IMPEACHED TWICE
FACT: trump is currently under THREE CRIMINAL INDICTMENTS . . . one for an attempt to stay in power by illegally overturning an election that has been proven over and over again to be accurate.
FACT: trump told over 30 THOUSAND lies while in office
FACT: Hunter Biden is NOT the President. . . “Joe” Biden is!
The truth will set you free!
rich L Santomassino says
Cocgrats Sherry as ALL of your statements are documented FACTS. I get very tired of the responders on this forum to note so called facts they retrieved from NewsMaxx, Fox news or some other source that is a documented fabricator of the truth. Remember Kellyanne Conway and her statement regarding “alternative facts”? People need to start reading news such as the Washington Post, the AP and Reuters. Alternative facts are just lies!
Sherry says
Thanks Rich!
I’ll continue to do my best to post credentialed FACTS in hopes that some of our fellow citizens can somehow escape the FOX Cult and come back to fact based reality. We desperately need to come back together to save our democracy. . . United We Stand! Divided We Fall! Russia and China are delighted that we are so divided and destroying our democracy from within.
I my opinion, FOX is fundamentally to blame for this situation. They have spent 25+ years pumping out extreme right winged propaganda/falsehoods/lies/disinformation. Based on that propaganda, they have instilled massive fear and hate in our neighbors and broken down our communities, our cooperating government leadership, our civility. If we are to heal this partisan divide and come together as a nation, we must first recognize and denounce the destructive, destabilizing work of the Murdoch empire.
We must sincerely welcome back into the fold any and all of those who manage to extricate themselves from FOX, seek credentialed facts, and regain their thinking and reasoning abilities. Let’s continue to have healthy debates about decisions grounded in credible facts instead of being so emotionally invested in the “culture wars” manufactured by FOX to boost their ratings and massive profits.
It’s time we find our moral compasses and require ourselves, and our leaders, to be honest and ethical, and to act with the utmost integrity. It’s time that we require laws that reflect the actual will of the majority of our people, and that those laws be applied “equally” and fairly. It’s time for “equal” opportunities for all of our citizens, beginning with all levels of education. It’s time to reclaim our humanity and treat ALL people on planet earth with human kindness.
It’s time to VOTE and to have each and every one of those legal votes counted!
Ron says
Facts!! You really need to come to grips. You do not want to hear the truth.
All you do is repeat the same talking points. But that how you justify your incompetence.
Do you really believe for one second that the current administration is not corrupt??
Do you really believe that we should not have term limits?
Do you really believe that we should permit lobbying?
Do you really believe that politicians should be allowed to keep all donations that were not spent?
Do you really believe all the facts that you’re told by your favorite media outlets after it was proven that the lied?
I can only hope that this country can find a real candidate for President this election cycle.
Tom Hutson says
I agree wholeheartedly BOTH parties need to come up with decent candidates that speak and represent the PEOPLE not themselves . We NEED to get away from
HATE politics and start working together for our country to move forward!!
Sherry says
@ron. . . your “Beliefs” are not “credentialled FACTS”. It must be that you cannot disprove any of the ones I have posted.
To answer your questions about your “non-factual” beliefs. . . I would most certainly like to see term limits and ethical rules established and vigilantly enforced for ALL of our government entities, including the Presidency, the Supreme Court and Congress.
I also believe that FOX has fundamentally undermined our entire democracy with their brainwashing of almost 50% of our citizens. While the entire Murdoch family may not be involved . . . that organization did not settle for a debt of over 787 MILLION dollars because they only report the unvarnished truth! FOX LIED and DEFAMED . . . and, they could not prove otherwise! Yet, there are those who mindlessly post only what they hear from FOX. What does that tell you about almost 50% of our citizens?
Land of no turn signals says says
First the Clinton’s and now the Biden’s have taken the honor of the lowest of the low in crooked politics.Trunp should get the same lawyer as Hunter so he also can get a slap on the wrist.I can’t believe that anyone left or right thinks that ONLY probation is the only punishment that low life should receive.
DaleL says
“Trunp” (sic) cannot get good lawyers because he doesn’t listen and he doesn’t pay. According to the reporting, the as yet unnamed co-conspirators in this latest indictment are his group of crazy crooked election lawyers.
Trump has managed repeatedly to get the same treatment for tax evasion as Hunter Biden’s proposed plea deal. Conspiring to stay in power after loosing the election rises to a much higher level of criminality.
Claiming, without a shred of evidence, that the Clintons (Bill and Hillary?) and the Bidens (Joe and whom else?) have taken the low in crooked politics is both deflection and projection. Stay on the issue. It was “Trunp” (sic) who motivated his mob to attack the Capitol. It is “Trunp” (sic) who is accused of ordering the destruction of evidence (security camera footage in the records case) and conspiring to stay in power.
Sherry says
@land. . . Please post “credentialled FACTUAL EVIDENCE” for your ridiculous claims against President Biden, and the Clintons. otherwise, we will all continue to understand that you can only mindlessly post FOX BS talking points.
Going forward. . . “credentialled facts only” please.
Joey G says
So you people think Biden is a god and Trump is the devil? Your better off now than 3 years ago right? Well sure you are. Hows the gas prices nice and low right? NAH, Ok how inflation it’s really low right? NAH, Ok than interest rates have to be low right? NAH, Well there has to be something better right? NAH, I could care less about the party, are we better now, no we are not. And the five Democrats on my street said the same thing no they are not better off now. And boy did they hate to say that just the other day. Looks like Biden has made millions with this corruption scheme and the facts keep pouring in. He can’t say 5 words without losing his thoughts. This man is running OUR COUNTRY we are all in this together so why are we so far apart in seeing reality. Our local children cannot afford to purchase homes cause interest rates are standing at 7%. That’s not Trump that’s Biden hurting our children it’s for all to see. Some of you people really need to get a grip and see what’s really going on cause our country is getting malled and this has nothing to do with a man that’s been out of office for 3 years. You people can’t think our country is going in the right direction for us and children/grand children. At this rate no one will be a winner cause they will lock your ass up for speaking out.
jake says
Well said.
Laurel says
Jake: “Well said” if you’re wearing blinders.