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.
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