When everyone on the Grand Jury empaneled by Jack Smith, except the foreperson, left the courthouse where they had been hearing evidence in the case around Donald J. Trump’s efforts to overturn the 2020 election at 2 p.m., we knew charges were coming down today. We weren’t disappointed. At around 5 p.m., the foreperson returned a sealed indictment against the former President. A short while later, the Indictment was unsealed, and Jack Smith announced the charges against Trump.
“Today, an indictment was unsealed charging Donald J. Trump with conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding,” said Special Counsel Jack Smith in a statement delivered to the press without questions. “The Indictment was issued by a grand jury of citizens here in the District of Columbia and sets forth the crimes charged in detail. I encourage everyone to read it in full.”
He made clear that those inside the capital and those defending it on January 6, 2021, weren’t the only victims that day. Our values, institutions, principles, and the American people were victims of the former President and his conspiracy to overthrow the government by overturning the will of the voters.
“The men and women of law enforcement who defended the U.S. Capitol on January 6th are heroes,” said Smith. “They’re patriots, and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives on the line to defend who we are as a country and a people. They defended the very institutions and principles that define the United States.”
He also said he and the Department of Justice remained committed to “ensuring accountability for those criminally responsible for what happened” between November 14, 2020, through January 20, 2021.
On Thursday, August 3, 2023, Trump was arraigned by Magistrate Judge Moxila A. Upadhyaya, where he pleaded not guilty.
Magistrate Judge Moxila A. Upadhyaya told him, “If you fail to comply with any conditions of your release, a warrant may be issued for your arrest.”
Trump entered his plea in the same courthouse where more than 1,000 of his supporters have been charged with federal crimes for participating in the Jan. 6, 2021, attack on the U.S. Capitol that halted the certification of Joe Biden’s victory.
The Indictment opens with Smith telling us and the court that Trump had every right to “speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures.”
Noting Trump did pursue every legal avenue to challenge the result of the election and failed before beginning to lay out the alleged crimes committed by Trump and his six co-conspirators.
This tactic eliminates any defense of these crimes as protected under the First Amendment or as political immune speech. This is also why he doesn’t charge Trump for inciting a riot or insurrection on January 6th but focuses on much of the behavior that led to the conditions that day and why he created those conditions.
The Indictment alleges Trump led “A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government, in violation of 18 USC § 371; a conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified (“the certification proceeding”), in violation of 18 USC § 1512(k); and a conspiracy against the right to vote and to have one’s vote counted, in violation of 18 USC § 241.
Then the Indictment lays out how and why the conspiracies were put into play by Trump and each conspirator. It also lays out who each co-conspirator is without naming them but makes it very easy to figure out by reading between the lines of the descriptions.
Co-Conspirator 1 (Rudy Guliani), an attorney who was willing to spread knowingly false claims and pursue strategies that the Trump’s 2020 re-election campaign attorneys would not.
Co-Conspirator 2 (John Eastman), an attorney who devised and attempted to implement a strategy to leverage the Vice President’s ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election.
Co-Conspirator 3 (Sidney Powell), an attorney whose unfounded claims of election fraud Trump privately acknowledged to others sounded “crazy.” Nonetheless, Trump embraced and publicly amplified Co-Conspirator 3’s disinformation.
Co-Conspirator 4 (Jeffrey Clark), a Justice Department official who worked on civil matters and who, with Trump, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.
Co-Conspirator 5 (Kenneth Chesebro), an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.
Co-Conspirator 6 (we still don’t know who this conspirator is), a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.
The Indictment alleges the conspiracies were “built on the widespread mistrust the Trump was creating through pervasive and destabilizing lies about election fraud”—targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election (“the federal government function”).
Trump and his co-conspirators organized fraudulent electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin) to meet on the day appointed by federal law on which legitimate electors were to gather and cast their votes, cast fraudulent votes for Trump, and sign certificates falsely representing that they were legitimate electors. Some fraudulent electors were tricked into participating on the understanding that their votes would be used only if the Trump campaign succeeded in “outcome-determinative lawsuits” within their state, which he did not.
At the same time, Trump and his co-conspirators used “the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome; that sought to advance the Trump’s fraudulent elector plan by using the Justice Department’s authority to falsely present the fraudulent electors as a valid alternative to the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states’ legislatures to convene to create the opportunity to choose the fraudulent electors over the legitimate electors.”
They also used those known lies to try to convince the Vice President to use Trump’s fake electors, reject legitimate electoral votes, or send them to state legislatures for review rather than counting them. When that failed, on the morning of January 6, Trump and co-conspirators knowingly repeated the lies of election fraud to gathered supporters and falsely told them that the Vice President had the authority to and might alter the election results. Then they directed them to the Capitol to obstruct the certification proceeding and pressure the Vice President to take the fraudulent actions he had previously refused.
As Trump’s supporters attacked the Capitol, he and his 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.”
While Trump and his co-conspirators were doing all of this, they were also pressuring those same seven states to overturn the will of their states. They did this using the same known lies they tried to pressure the DOJ and Mike Pence to assist in their scheme to keep Trump illegally in power.
After a conversation with his campaign manager on November 13, 2020, the campaign manager told Trump that the claims about a substantial number of non-citizens in Arizona weren’t true. Trump was repeatedly told by many top people in his administration and campaign that both his broader allegations and the specific ones he constantly repeated were all nonsense. At several points, Trump even admitted as much as did many of his co-conspirators.
“We don’t have the evidence, but we have lots of theories,” Guliani told the Arizona House Speaker when confronted about the lack of evidence for the second time.
Trump called the Acting Attorney General and Acting Deputy Attorney General and said, among other things, “People tell me Jeffrey Clark is great. I should put him in.” Trump also raised multiple false claims of election fraud, which the Acting Attorney General and Acting Deputy Attorney General refuted. When the Acting Attorney General told Trump that the Justice Department could not and would not change the election outcome, Trump responded, “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.”
Trump would eventually place Jeffery Clark as Acting Attorney General until he was told under no certain terms that if he did so, mass resignations would stain his “legacy,” and the offer was rescinded. Jeffery Clark was co-conspirator four in the scheme to overthrow American democracy and install Trump as a dictator.
On the afternoon of January 3, Jeffery Clark spoke with a Deputy White House Counsel. The previous month, the Deputy White House Counsel had informed Trump that “there is no world, there is no option in which you do not leave the White House [o]n January 20th.” Now, the same Deputy White House Counsel tried to dissuade Co-Conspirator 4 from assuming the role of Acting Attorney General. The Deputy White House Counsel reiterated to Co-Conspirator 4 that there had not been outcome-determinative fraud in the election and that if Trump remained in office, there would be “riots in every major city in the United States.” Jeffery Clark responded, “Well, Pat (Cipollone, White House Council), that’s why there’s an Insurrection Act.”
If the scheme to overturn the Georgia election was the most blatant attempt in the seven-state plot, with the tapes of Trump pressuring officials there to find him the exact number of votes he needed to win Georgia, the Pennsylvania scheme was perhaps one of the most interesting.
It was so interesting because he didn’t just lie about there being more votes than there should have been but that it was demonstrably so, and he continued to repeat it. He also issued a statement that led directly to various Philadelphia officials and state officials, all Republicans, receiving death threats.
Guliani falsely claimed that Pennsylvania had issued 1.8 million absentee ballots and received 2.5 million in return. In the days after that, a Campaign staffer wrote internally that Co-Conspirator l’s allegation was “just wrong” and “[t]here’s no way to defend it” at a “hearing “held in Gettysburg.
The Deputy Campaign Manager responded to the hearing, “We have been saying this for a while. It’s very frustrating.” Four Republican leaders of the Pennsylvania legislature said in a public statement that” the General Assembly lacked the authority to overturn the popular vote and appoint its own slate of electors, and that doing so would violate the state Election Code and Constitution” on December 4th.
According to the Indictment, on January 4th, Trump met with Pence and John Eastman to convince the Vice President to reject or send Biden’s legitimate electoral votes to the states rather than count them based on the big lie. Trump deliberately excluded his White House Counsel from the meeting because the White House Counsel previously had pushed back on Trump’s lies about the election.
During the meeting, as reflected in the Vice President’s contemporaneous notes, Trump made knowingly false claims of election fraud, including, “Bottom line—won every state by 100,000s of votes” and “We won every state,” and asked—regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before —”What about 205,000 votes more in P.A. than voters?”
When the Vice President challenged Eastman on whether the proposal to return the question to the states was defensible, Eastman responded, “Well, nobody’s tested it before.” The Vice President then told Trump, “Did you hear that? Even your own counsel is not saying I have that authority.” Trump responded, “That’s okay, I prefer the other suggestion” of the Vice President rejecting the electors unilaterally.
That same day Eastman acknowledged to Trump’s Senior Advisors that no court would support their fake electors’ plan; the Senior Advisor to Eastman, “You’re going to cause riots in the streets.”
“There had previously been points in the nation’s history where violence was necessary to protect the republic,” said Eastman in response. Eastman continued to push Pence to “unilaterally reject electors from the targeted states” during a follow-up meeting on January 5th.
For his part that day, Trump repeatedly lied to his supporters about what Vice President Pence could do on January 6th and continued to amp them up with lies about the election and promoting his rally. He continued those lies at his rally, claiming, “The Vice President and I are in total agreement that the Vice President has the power to act.”
“I hope Mike is going to do the right thing. I hope so, I hope so. Because if Mike Pence does the right thing, we win the election. All he has to do—all, this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country—he has the absolute right to do it. We’re supposed to protect our country, support our country, support our Constitution, and protect our Constitution,” told the crowd of rabid supporters. “States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify, and we become President, and you are the happiest people.”
After Trump falsely stated that the Pennsylvania legislature wanted “to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back,” the crowd began to chant, “Send it back.”
After Trump ignited the bomb that he turned his supporters into with months of lies and pointed them at the Capitol to disrupt the certification proceeding, Trump went back to the White House to sit in the dining room to watch his mob break through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.
When it was clear Pence wasn’t going to violate the law, and after more than an hour of steady, violent advancement and the crowd at the Capitol broke into the building, Trump tweeted out. “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones they were asked to certify previously. USA demands the truth!”
Trump continued encouraging his rioters as they overtook the Capitol with tweets calling his supporters “very special” and telling them, “We love you.” Joining White House staff in the outer Oval Office, Trump told those present, “See, this is what happens when they try to steal an election. These people are angry. These people are really angry about it. This is what happens.”
After hours of fighting and the Capitol having been overrun at 6:01 on the evening of January 6th, Trump finally tweeted, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”
Trump and his co-conspirators also pushed legislators to delay the certification until the next day.
“We need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they’re reconvening at eight tonight, but the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow…ideally until the end of tomorrow,” said Rudy Guliani in a voicemail intended for a U.S. Senator.
In another message intended for another U.S. Senator, Rudy Guliani repeated knowingly false allegations of election fraud, including that the vote counts certified by the states to Congress were incorrect and that the governors who had certified them knew they were incorrect; that “illegal immigrants” had voted in substantial numbers in Arizona; and that “Georgia gave you a number in which 65,000 people who were underage voted.” Guliani also claimed that the Vice President’s actions had been surprising and asked the Senator to “object to every state and kind of spread this out a little bit like a filibuster.”
Finally, just after the Senate and House of Representatives came back into Joint Session at 11:35 p.m., John Eastman sent Vice President Pence an email calling him to further violate the law and delay the certification.
“I implore you to consider one more relatively minor violation (of the Electoral Count Act) and adjourn for ten days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here,” Wrote Eastman in the email sent at 11:44 p.m.
The level of detail in the Indictment makes it clear not only is the evidence against Trump and his co-conspirators compelling, but it also preempts many of the arguments Trump and his allies have been making.
It makes it clear there is no first amendment issue by focusing on the actions of the conspirators and pointing to the ways their activities were illegal and out of the bounds of what politicians are allowed to do, leaving Trump and his legal team with very little, if any, legal maneuvers other than delay tactics and a public relations arguments.
Neither of which will mean a hill of beans when the trial starts, and Trump has to sit in front of the judge and jury that will decide his level of guilt and ultimate fate as a criminal defendant.