Federal Criminal Case Against Trump (2020 Election Case)

Subterms

    More stories

    • 100 Shares199 Views

      in Elections

      Trump Indictment Leaves Alleged Co-Conspirators Facing Tough Choices

      by

      The special counsel’s decision not to charge six people said to have played critical roles in the effort to keep Donald Trump in office seemed to give them a chance to cooperate with prosecutors. Some appear to be unwilling.By the time Jack Smith, the special counsel, was brought in to oversee the investigation of former President Donald J. Trump’s attempts to overturn the 2020 election, the inquiry had already focused for months on a group of lawyers close to Mr. Trump.Many showed up as subjects of interest in a seemingly unending flurry of subpoenas issued by a grand jury sitting in the case. Some were household names, others less familiar. Among them were Rudolph W. Giuliani, John Eastman, Jeffrey Clark, Kenneth Chesebro and Sidney Powell.On Tuesday, most of these same lawyers showed up again — albeit unnamed — as Mr. Trump’s co-conspirators in a federal indictment accusing him of a wide-ranging plot to remain in office despite having lost the election.The appearance of the lawyers at the center of the case suggests how important prosecutors judged them to be to the conspiracy to execute what one federal judge who considered some of the evidence called “a coup in search of a legal theory.”The lawyers’ placement at the heart of the plot while remaining uncharged — for now — raised questions about why Mr. Smith chose to bring the indictment with Mr. Trump as the sole defendant.In complex conspiracy cases, prosecutors often choose to work from the bottom up, charging subordinates with crimes to put pressure on them to cooperate against their superiors. It remains unclear precisely what Mr. Smith may be seeking to accomplish by flipping that script.Some legal experts theorized on Wednesday that by indicting Mr. Trump alone, Mr. Smith might be seeking to streamline and expedite the case ahead of the 2024 election. If the co-conspirators were indicted, that would almost certainly slow down the process, potentially with the other defendants filing motions and seeking to splinter their cases from Mr. Trump’s.“I think it’s a clean indictment to just have Donald Trump as the sole defendant,” said Soumya Dayananda, a former federal prosecutor who served as a senior investigator for the House Jan. 6 committee. “I think it makes it easier to just tell the story of what his corrupt activity was.”Another explanation could be that by indicting Mr. Trump — and leaving open the threat of other charges — Mr. Smith was delivering a message: cooperate against Mr. Trump, or end up indicted like him. By not charging them for now, Mr. Smith could be giving the co-conspirators an incentive to reach a deal with investigators and provide information about the former president.While the threat of prosecution could loom indefinitely, it is possible that the judge overseeing the case might soon ask Mr. Smith’s team to disclose whether it plans to issue a new indictment with additional defendants. And some legal experts expect additional charges to come.“It’s clearly a strategic decision not to charge them so far, because it’s out of the ordinary,” said Joyce Vance, a former U.S. attorney who is now a University of Alabama law professor. “I don’t see an advantage to giving people this culpable a pass.”That said, at least one of the co-conspirators — Mr. Giuliani — and another possible co-conspirator — Boris Epshteyn, a lawyer and strategic adviser close to Mr. Trump — have already sat with prosecutors for extended voluntary interviews. To arrange for such interviews, prosecutors typically consent not to use any statements made during the interview in future criminal proceedings against them unless the subject is determined to have been lying.Boris Epshteyn has sat with prosecutors for an extended voluntary interview.Jim Lo Scalzo/EPA, via ShutterstockBut those protections do not prevent Mr. Smith from charging anyone who sat for an interview. He still has the option of filing charges against any or all of the co-conspirators at more or less any time he chooses.He used that tactic in a separate case against Mr. Trump related to the former president’s mishandling of classified documents, issuing a superseding indictment last week that accused a new defendant — the property manager of Mr. Trump’s private club and residence in Florida — of being part of a conspiracy to obstruct the government’s attempts to retrieve the sensitive materials.Some of the lawyers named as Mr. Trump’s co-conspirators in the indictment filed on Tuesday have effectively acknowledged to being named in the case through their lawyers.In a statement issued Tuesday night, Robert J. Costello, a lawyer for Mr. Giuliani, said it “appears” as if the former New York City mayor were Co-Conspirator 1. The statement also leveled a blistering attack on the indictment — and a defense of Mr. Trump — suggesting that Mr. Giuliani was an unlikely candidate for cooperating against the former president.“Every fact that Mayor Giuliani possesses about this case establishes the good-faith basis President Donald Trump had for the action that he took,” Mr. Costello said.Not long after, Charles Burnham, a lawyer for Mr. Eastman, implicitly admitted his client’s role as Co-Conspirator 2 by issuing a statement “regarding United States v. Donald J. Trump indictment” in which he insisted Mr. Eastman was not “involved in plea bargaining.”John Eastman after a hearing in Los Angeles. His lawyer implicitly admitted his client’s role as Co-Conspirator 2.Jae C. Hong/Associated Press“The fact is, if Dr. Eastman is indicted, he will go to trial,” the statement said. “If convicted, he will appeal.”Some sleuthing was required to determine the identities of the other co-conspirators.The indictment refers to Co-Conspirator 3, for instance, as a lawyer whose “unfounded claims of election fraud” sounded “crazy” to Mr. Trump.That description fits Ms. Powell. She was best known during the postelection period for filing four lawsuits in key swing states claiming that a cabal of bad actors — including Chinese software companies, Venezuelan officials and the liberal financier George Soros — conspired to hack into voting machines produced by Dominion Voting Systems and flip votes from Mr. Trump to Mr. Biden.Mr. Clark is a close match to the description of Co-Conspirator 4, who is identified in the charges as a Justice Department official who worked on civil matters and plotted with Mr. Trump to use the department to “open sham election crime investigations” and “influence state legislatures with knowingly false claims of election fraud.”Against the advice of top officials at the Justice Department, Mr. Trump sought to install Mr. Clark, a high-ranking official in the department’s civil division, as the acting attorney general in the waning days of his administration after Mr. Clark agreed to support his claims of election fraud.Sidney Powell was best known during the postelection period for filing four lawsuits in key swing states claiming that a cabal of bad actors conspired to flip votes from Mr. Trump to Mr. Biden.Erin Schaff/The New York TimesMr. Clark also helped draft a letter to Gov. Brian Kemp of Georgia, a Republican, urging him to call the state legislature into a special session to create a slate of false pro-Trump electors even though the state was won by Joseph R. Biden Jr.A batch of documents obtained by The New York Times helped to identify Mr. Chesebro as Co-Conspirator 5, who is described in the indictment as a lawyer who helped to craft and implement “a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.”The emails obtained by The Times laid out a detailed picture of how several lawyers, reporting to Mr. Giuliani, carried out the so-called fake elector plot on behalf of Mr. Trump, while keeping many of their actions obscured from the public — and even from other lawyers working for the former president.Several of these emails appeared as evidence in the indictment of Mr. Trump, including some that showed lawyers and the false electors they were seeking to recruit expressing reservations about whether the plan was honest or even legal.“We would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted,” a lawyer based in Phoenix who helped organize the pro-Trump electors in Arizona wrote to Mr. Epshteyn on Dec. 8, 2020.In another example, Mr. Chesebro wrote to Mr. Giuliani that two electors in Arizona “are concerned it could appear treasonous.”At one point, the indictment quotes from a redacted message sent by an Arizona lawyer on Dec. 8, 2020, that reads, “I just talked to the gentleman who did that memo, [Co-Conspirator 5]. His idea is basically. …”Jeffrey Clark appears to be a close match to Co-Conspirator 4, who is described in the charges as a Justice Department official who worked on civil matters and plotted with Mr. Trump.Kenny Holston/The New York TimesAn unredacted version of that email obtained by The Times has the name “Ken Cheseboro” in the place of Co-Conspirator 5.The indictment also cites a legal memo dated Nov. 18, 2020, that proposed recruiting a group of Trump supporters who would meet and vote as purported electors for Wisconsin. The court filing describes it as having been drafted by Co-Conspirator 5. That memo, also obtained by The Times, shows it was written by Mr. Chesebro.A separate email, reviewed by The Times, gives a hint that Mr. Epshteyn could be Co-Conspirator 6.The email — bearing a subject line reading, “Attorney for Electors Memo” — was sent on Dec. 7, 2020, to Mr. Giuliani and Mr. Giuliani’s son, Andrew.“Dear Mayor,” it reads. “As discussed, below are the attorneys I would recommend for the memo on choosing electors,” adding the names of lawyers in seven states.Paragraph 57 of the indictment asserts that Co-Conspirator 1, or Mr. Giuliani, spoke with Co-Conspirator 6 about lawyers who “could assist in the fraudulent elector effort in the targeted states.”It also says that Co-Conspirator 6 sent an email to Mr. Giuliani “identifying attorneys in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin” — the same seven states mentioned in the email reviewed by The Times.Maggie Haberman More

    • 100 Shares179 Views

      in Elections

      The Far-Reaching Consequences of the Latest Trump Indictment

      by

      The latest charges against Donald Trump amount to “the most consequential of all the indictments filed so far,” the Opinion columnist David French argues in this audio essay. On Tuesday, the former president was indicted on four federal counts related to his efforts to overturn the 2020 election, efforts that were part of what French calls “one of the most malicious conspiracies in American history.” Despite this, the case, which hinges on proving Trump’s intent, may not be a slam dunk.Christopher Smith for The New York TimesThe Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.This Opinion Short was produced by Vishakha Darbha. It was edited by Kaari Pitkin and Annie-Rose Strasser. Mixing by Pat McCusker. Original music by Pat McCusker and Carole Sabouraud. Fact-checking by Mary Marge Locker. Audience strategy by Shannon Busta and Kristina Samulewski. More

    • 125 Shares139 Views

      in Elections

      How Rudy Giuliani Became Co-Conspirator 1 in the Trump Indictment

      by

      Referred to as “Co-Conspirator 1” in the indictment of Donald Trump, the former prosecutor, mayor and presidential lawyer faces an uncertain legal future.Rudolph W. Giuliani is Co-Conspirator 1.Mr. Giuliani, the crime-fighter who rose from a federal prosecutor’s office to lead New York City at its moment of deepest crisis, is not named in the indictment that was filed Tuesday accusing his former client, Donald J. Trump, of plotting to overturn the 2020 election.But Co-Conspirator 1, who Mr. Giuliani’s lawyer acknowledged appeared to be his client, figures in each of the three conspiracies it alleges took place — leaving open the possibility that Mr. Giuliani could be charged himself.The next chapter in his long public life will now be written by the special counsel who filed the indictment, Jack Smith, who can prosecute him, pressure him into cooperating or leave him dangling, potentially to be indicted by a district attorney investigating election interference in Georgia.The former mayor who made his name as a lawman now faces a reckoning with the law.Mr. Giuliani’s relationship with Mr. Trump hangs in the balance. A person close to Mr. Trump who spoke confidentially to describe a private relationship said that while they don’t speak regularly, the former president retains a fondness for Mr. Giuliani born from his stint as mayor, when the two dealt with each other often.But in recent years, their relationship has been on uneven footing as the former president had refused to pay his former lawyer’s legal bills amid mounting legal troubles for both, infuriating Mr. Giuliani’s allies. The former president had told advisers that he did not want Mr. Giuliani to be reimbursed, The New York Times reported.This year, filings suggest, Mr. Trump’s super PAC paid a legal vendor working on Mr. Giuliani’s behalf. The $340,000 payment was made weeks before Mr. Giuliani met voluntarily with Mr. Smith’s office — a meeting that took place under a proffer agreement, in which prosecutors consent to not use any statements during an interview in criminal proceedings unless it is determined that the subject was lying. The agreement does not mean that prosecutors will not charge Mr. Giuliani, nor does it indicate they will seek his cooperation.The payment appeared to bail Mr. Giuliani out of a difficult financial situation. Before it was made, he had told the federal judge presiding over a defamation lawsuit filed against him by two Georgia election workers that he could not afford to pay some of his legal expenses.Tuesday’s indictment, filed in Federal District Court in Washington, details five ways in which six co-conspirators aided Mr. Trump. The attempts begin with efforts to persuade state officials — sometimes by using threats — to overturn the legitimate vote so that false electors could deliver their support to Mr. Trump in the Electoral College. They end with attempts to flip the result even after the attack on the U.S. Capitol on Jan. 6, 2021.Mr. Giuliani, 79, was involved in every step, the indictment says. He bullied and cajoled officials in Arizona, Georgia, Pennsylvania and Wisconsin; helped convene slates of fraudulent electors to cast ballots for Mr. Trump; falsely claimed that Vice President Mike Pence had the power to overturn the election; and, finally, called lawmakers after the attack on the Capitol, asking that they delay the election’s certification.Mr. Giuliani became one of Mr. Trump’s foremost political defenders after the 2020 election.Erin Schaff/The New York TimesOn Tuesday, Mr. Giuliani’s lawyer, Robert J. Costello, said that his client appeared to be the person identified as Co-Conspirator 1 before blasting the indictment, saying it “eviscerates the First Amendment” and was meant to disrupt Mr. Trump’s third presidential campaign.“Every fact that Mayor Giuliani possesses about this case establishes the good-faith basis President Donald Trump had for the action that he took,” Mr. Costello said.“This indictment underscores the tragic reality of our two-tiered justice system — one for the regime in power and the other for anyone who dares to oppose the ruling regime,” Ted Goodman, political adviser to Mr. Giuliani, said on Wednesday.By this stage of his alliance with the former president, Mr. Giuliani is used to legal trouble.The two men have known each other for decades. After serving in the Reagan Justice Department, Mr. Giuliani in 1983 became the U.S. attorney for the Southern District of New York, one of the most prominent legal posts in the government. There, he focused on disrupting organized crime, zeroing in on the five Mafia families of New York. At the same time, Mr. Trump was leveraging his real estate empire to burnish his tabloid celebrity.The men shared a thirst for public attention and a harsh law-and-order politics that kept them aligned after Mr. Giuliani was elected mayor in 1993.His leadership after the Sept. 11 attacks briefly vaulted Mr. Giuliani to the pinnacle of American public life; he was named Time magazine’s person of the year, his leadership compared to that of Winston Churchill. But after Mr. Giuliani left office at the end of 2001 he sank toward irrelevancy, a decline reflected in his failed 2008 Republican presidential campaign.When he re-emerged, it was on behalf of Mr. Trump. He was an omnipresent surrogate for the candidate in the final stages of the 2016 campaign and never abandoned Mr. Trump once he became president. In 2018 — despite having been passed over for the position he coveted, secretary of state — Mr. Giuliani began working as a lawyer for Mr. Trump.Tuesday’s indictment accuses Mr. Trump and co-conspirator 1 of attacking the underpinnings of American democracy.Al Drago for The New York TimesBy that time, the president was fighting a first special counsel investigation, led by Robert S. Mueller III, which concerned possible Russian interference in the election. Mr. Giuliani joined the battle with gusto, saying that Mr. Trump was being targeted for his politics.Like several of Mr. Trump’s lawyers, Mr. Giuliani became embroiled in the legal travails of his client. He had tried to push a new Ukrainian president, Volodymyr Zelensky, to investigate Joseph R. Biden Jr. as Mr. Biden emerged as Mr. Trump’s chief rival in the 2020 presidential race. Mr. Giuliani’s dealings in Ukraine prompted federal prosecutors in Manhattan to open an investigation into the man who had once led the office.Mr. Smith has homed in on the aftermath of Mr. Biden’s victory that year. The indictment says that Mr. Trump on Nov. 14, 2020, appointed Mr. Giuliani to “spearhead his efforts going forward to challenge the election results.”Mr. Giuliani took up the mission, meeting with speakers of the house in Arizona and Michigan, asking them to replace their proper electors with groups that would cast votes for Mr. Trump. In all, Mr. Giuliani helped coordinate a scheme to put forward fraudulent slates of electors in seven states, the indictment said.In Georgia, Mr. Giuliani organized a presentation for lawmakers where people claiming to be electoral fraud experts falsely claimed that 10,000 dead people had voted.And after the attack on the U.S. Capitol delayed the certification of the election, Mr. Giuliani helped Mr. Trump lobby lawmakers, unsuccessfully, to keep Mr. Biden out of the White House.When Mr. Trump left office, the legal pressure on Mr. Giuliani escalated.FB.I. agents searched his home and office, seizing cellphones and computers. The federal investigation into Mr. Giuliani’s actions in Ukraine ended in 2022 with no charges, but he was sued by voting machine companies that he claimed had helped engineer Mr. Biden’s victory.In June, his law license was suspended in connection with the statements he made about the 2020 election. Mr. Giuliani’s legal bills piled up. Mr. Trump was declining to pay him even as Fani Willis, the Fulton County district attorney, investigated him for his attempts to overturn the election in Georgia.Soon, Mr. Smith would join her.Maggie Haberman More

    • 125 Shares139 Views

      in Elections

      Part Thriller, Part Whodunit: The Trump Indictment Is a Must-Read

      by

      The federal indictment issued this week against Donald Trump for his efforts to steal the 2020 presidential election has a literary quality to it. It reads like a movie script.A lot of what’s in it is information we already knew, but it’s worth noting that the document is simultaneously comprehensive and streamlined, with a clear protagonist, Trump, as a brooding, plotting, maleficent force sowing chaos and destruction.It makes this unprecedented moment in American history digestible and re-establishes the tension that we should all acknowledge about the magnitude of what took place after the last election: Trump engaged in one of the most sweeping and consequential voter suppression efforts in the country’s history.The indictment is the harrowing, true-life story of how a former president pushed our democracy perilously close to the edge and remains a threat to push it over.Avid consumers of news and those of us in the news business can grow cold to this kind of development. We track revelations in real time. We read the stories and the books as they’re written. We watch television interviews and listen to podcasts. For us, the indictment may feel anticlimactic, just a bit farther down judicial and political lines laid like parallel train tracks.But in the milieu of what I call our “urgent incrementalism,” with our appetite for granularity and comprehensiveness, we newshounds sometimes lose the perspective of the everyday citizen.Most people don’t follow each iteration of a story, not because they’re uninterested but because they’re distracted. Their lives are happening. They’re trying to grab coffee for the commute, worrying about the rent getting paid, trying to remember if they signed the permission slip and nervously eying the fuel gauge as the indicator creeps toward E.For that reason, the absorbable — and quite absorbing — summary that the indictment represents is crucial. Among other virtues, it isn’t written in dense legalese. It’s a drama that takes readers into Trump’s thinking. It allows them to see not only what lies Trump is accused of telling, but also how he viewed the things he said at the time he said them.People often talk about Trump lying for self-aggrandizement and about his thirst for others’ lies meant to flatter him. All true, but that category of lies is on the frivolous end of the spectrum.The indictment charges him with another category of lying: of trying to compel the actions of others. It highlights Trump’s elite-level penchant for deceit.It makes a convincing case that Trump wasn’t misled by minions feeding his vanity, but was instead calculating, telling lies that he believed would pressure those minions to act in his interest. He seemed to constantly be scanning the room, searching for which confidants were offering the most useful fabrications, for those willing to commit to his election-denying craziness, for the kamikazes of false narratives.Trump used the deception that he and his supporters were under lawless attack to justify a by-any-means-necessary counterattack. On Jan. 6, 2021, Trump directed his supporters to descend on the Capitol, imploring Republicans to “get tougher” and cast aside the strictures of convention, saying: “And fraud breaks up everything, doesn’t it? When you catch somebody in a fraud, you’re allowed to go by very different rules.”That day, Trump would repeatedly, falsely, claim that fraud had led to his defeat.The indictment also illustrates how Trump linked other people’s fortunes to his own, creating a dependency, a symbiosis, in which there is peril in severance. Defending Trump becomes a form of self-defense for those who support him.There’s a biological phenomenon known as parasitism, a relationship in which a parasite benefits while its host is harmed. This is the relationship that many Republicans — both politicians and voters — find themselves in with Trump. But they have courted their own infection.Trump is the clear villain of this story, but for his adherents, villainy is subjective.In Donald Miller’s book, “Hero on a Mission,” he posits that in stories, heroes and villains have a similar background: They both start as victims. What separates them, he suggests, is how they process their pain.Trump is the hero of Trump World because he mirrors and amplifies his devotees’ collective psyche. He processes pain — often of his own invention — by inflicting it. He craves vengeance. He courts cruelty. He flouts the rules.In the indictment, it is some of the secondary characters — the state officials, campaign staff members and White House lawyers who pushed back against Trump’s plotting — who emerge as the antiheroes, providing much of the evidence arrayed against Trump.According to the indictment, as one campaign adviser emailed in 2020 about the dubious efforts of Trump’s “elite” legal team: “I’ll obviously hustle to help on all fronts, but it’s tough to own any of this,” conspiracy theories “beamed down from the mother ship.”The indictment isn’t a pleasant read, but it’s surprisingly readable. It isn’t entertainment, but it’s a must-read document detailing one of the gravest threats the country has ever faced from a president. It most likely won’t change minds or significantly alter political trajectories.But it does make a clear and compelling case, and that is a service to the country in its own right.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion), and Instagram. More

    • 125 Shares179 Views

      in Elections

      Messages Point to Identity of Co-Conspirator 6 in Trump Indictment

      by

      An email sent by Boris Epshteyn, an adviser to the Trump campaign, matches the description of an email that the indictment attributed to one of six unnamed co-conspirators.The indictment of former President Donald J. Trump in connection with his efforts to retain power after his 2020 election loss left a number of unanswered questions, among them: Who is Co-Conspirator 6?The indictment asserted that six people aided Mr. Trump’s schemes to remain in office. It did not name any of them, but most were reasonably easy to identify through details contained in the indictment, like Rudolph W. Giuliani, the former New York mayor and lawyer for Mr. Trump (Co-Conspirator 1), and John Eastman, the lawyer behind the idea that Vice President Mike Pence could block or delay certification of Mr. Trump’s loss on Jan. 6 (Co-Conspirator 2).Co-Conspirator 6 was more of a mystery. Identified by the indictment as “a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding,” the person could have been a number of figures in Mr. Trump’s orbit.But a close look at the indictment and a review of messages among people working with Mr. Trump’s team provides a strong clue. An email from December 2020 from Boris Epshteyn, a strategic adviser to the Trump campaign in 2020, to Mr. Giuliani matches a description in the indictment of an interaction between Co-Conspirator 6 and Mr. Giuliani, whose lawyer has confirmed that he is Co-Conspirator 1.The email, sent on Dec. 7, 2020, and reviewed by The New York Times, was from Mr. Epshteyn to Mr. Giuliani and Mr. Giuliani’s son, Andrew, and had the subject line, “Attorneys for Electors Memo.” It says, “Dear Mayor, as discussed, below are the attorneys I would recommend for the memo on choosing electors,” and it goes on to identify lawyers in seven states.Paragraph 57 of the indictment says that Co-Conspirator 1, Mr. Giuliani, “spoke with Co-Conspirator 6 regarding attorneys who could assist in the fraudulent elector effort in the targeted states” and received an email from Co-Conspirator 6 “identifying attorneys in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin.”Those are the seven states in the email that Mr. Epshteyn sent to Mr. Giuliani and that was reviewed by The Times. The existence of the email from Mr. Epshteyn does not eliminate the possibility that someone else sent Mr. Giuliani a similar note.Todd Blanche, a lawyer for Mr. Epshteyn, declined to comment, as did Peter Carr, a spokesman for the special counsel Jack Smith. Mr. Blanche also represents Mr. Trump in the two federal indictments against him.The indictment also says Co-Conspirator 6 participated in a conference call organized by Mr. Trump’s campaign with pro-Trump electors in Pennsylvania, a state won by Joseph R. Biden Jr. When the electors expressed concern about going along with the plan, Co-Conspirator 1, Mr. Giuliani, “falsely assured them that their certificates would be used only if” Mr. Trump succeeded in fighting the election in court, according to the indictment.The actions described in the indictment are consistent with previous reporting by The Times about Mr. Epshteyn’s actions. During the push to overturn the 2020 election, Mr. Epshteyn worked with people inside and outside the Trump campaign as he helped to organize slates of so-called fake electors. Mr. Epshteyn is currently a top adviser to Mr. Trump, helping to coordinate various lawyers in the cases in which he is involved.Glenn Thrush More

    • 125 Shares99 Views

      in Elections

      Why Jack Smith Had to Bring This Indictment Against Trump

      by

      Donald Trump has now been indicted three times, accused of crimes occurring before, during and after his presidency. The latest indictment alleges facts from all quarters to prove his criminality: from the vice president to the White House counsel and the heads of the Justice Department, the Department of Homeland Security and the Office of National Intelligence, as well as many others. All are Republican loyalists.But the indictment does more: It skillfully avoids breathing air into a Trump claim of selective prosecution. To not have brought this case against Mr. Trump would have been an act of selective nonprosecution. The Justice Department has already charged and obtained convictions for myriad foot soldiers related to the attack on the Capitol on Jan. 6, 2021, including charging well over 300 people for obstructing the congressional proceedings. In this indictment, the special counsel Jack Smith wisely brings that same charge, but now against the alleged leader of the effort to thwart the transfer of power.That charge of obstruction and conspiracy to defraud the United States in the administration of elections are entirely fitting for the conduct alleged in the indictment. In a civil case last year, the Federal District Court judge David Carter held that Mr. Trump and John Eastman likely engaged in a criminal conspiracy under both those statutes in their schemes to organize false electors and pressure the vice president. Mr. Smith has now said he can prove the same conduct beyond a reasonable doubt.Although the Jan. 6 select committee referred Mr. Trump for investigation for inciting an insurrection, Mr. Smith wisely demurred. The Justice Department has not charged that offense in any other case involving the attack on the Capitol, and insurrection has not been charged since the 19th century. Of course, no president has engaged in it since then — but since no one else has been charged with that crime relating to Jan. 6, it likely would have been an issue. And since the penalty for the insurrection offense is that the defendant would not be eligible to hold federal office, it would have fueled a claim of weaponizing the Justice Department to defeat a political rival.Mr. Trump and others like him will of course continue to assert that the Justice Department has been politically weaponized. That claim has it exactly backward.To not charge Mr. Trump for trying to criminally interfere with the transfer of power to a duly elected president would be to politicize the matter. It would mean external political considerations had infected the Justice Department’s decision-making and steered the institution away from its commitment to holding everyone equally accountable under the law.What those circling their wagons around Mr. Trump are in effect asking for is a two-tiered system, in which the people who were stirred by lies to interrupt the congressional certification are held to account but not the chief instigator. That injustice has not been lost on judges overseeing cases related to Jan. 6. In the 2021 sentencing of John Lolos — a 48-year-old man with no criminal record who traveled from Seattle to hear Mr. Trump’s speech at the Ellipse before being convinced to “storm” the Capitol — Judge Amit Mehta commented on the incongruity in the D.C. courtroom.“People like Mr. Lolos were told lies, fed falsehoods, and told that our election was stolen when it clearly was not,” the judge said. He went on to add that those “who created the conditions that led to Mr. Lolos’s conduct” and the events of Jan. 6 have “in no meaningful sense” been held “to account for their actions and their words.”We are now on the doorstep of the sort of accountability that Judge Mehta found lacking.That is what also makes this indictment of the former president different. Where both the Manhattan hush money case and classified documents case have been, in some part, mired in discussions of whataboutism, the 2020 election interference indictment is where whataboutism goes to die.In this case, the Trump stratagem is unmasked. Given the record of robust prosecutions of Jan. 6 foot soldiers and Mr. Trump’s responsibility for their actions, he has had to resort to saying the Capitol attack was good, and he and his enablers have lauded convicted felons as heroes and “political prisoners.” Mr. Trump’s continued statements in favor of the Jan. 6 defendants can and likely will be used against him in any trial.As the narrative of the indictment lays out, Mr. Trump’s schemes — to sell the big lie and promote election fraud even when he privately conceded to advisers the claims were “unsupported” and “crazy” — are what contributed to the attack of Jan. 6. And it is a relief that the indictment includes Mr. Trump’s role and responsibility in that violence. Many Americans would not understand the Justice Department focusing only on bureaucratic and procedural efforts to affect the congressional certification.As Senator Mitch McConnell said at the close of Mr. Trump’s second impeachment trial, “There is no question — none — that President Trump is practically and morally responsible for provoking the events of the day.”He added: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”What is also clear from the indictment is that Mr. Trump will most likely not be the last white-collar defendant charged for the set of crimes it sets out. Mr. Smith clearly, and properly, considers that the six co-conspirators — parts of the indictment describe actions by co-conspirators that correspond with those taken by, for example, Mr. Eastman and Rudy Giuliani — committed federal offenses that threatened the core of our democracy. The rule of law cannot tolerate those actors facing charges with the main protagonist going scot free.The main task ahead for Mr. Smith is getting his cases to trial before the general election. But the true test ahead will not be for Mr. Smith. It will be for us: Will Americans care about the rule of law enough to vote for it? The courtroom is a place where facts and law still matter, but the criminal cases against Mr. Trump will test whether the same can be said for the ballot box.Ryan Goodman, a law professor at the New York University School of Law, is a co-editor in chief of Just Security. Andrew Weissmann, a senior prosecutor in Robert Mueller’s special counsel investigation, is a professor at N.Y.U. School of Law and a host of the podcast Prosecuting Donald Trump.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 125 Shares99 Views

      in Elections

      Why Jack Smith’s Jan. 6 Trump Indictment Is So Smart

      by

      This is the indictment that those who were horrified by the events of Jan. 6, 2021, have been waiting for. The catalog of misdeeds that Donald Trump is accused of is extensive, some reflected in other prosecutions over classified documents and hush-money payments or in civil lawsuits.But this case — a sitting U.S. president’s assault on democracy — is by far the most consequential. And from the looks of this indictment, the prosecution’s case is going to be thorough and relentless.The charging decisions in the indictment reflect smart lawyering by the special counsel Jack Smith and his team. The beauty of this indictment is that it provides three legal frameworks that prosecutors can use to tell the same fulsome story.It will allow prosecutors to put on a compelling case that will hold Mr. Trump fully accountable for the multipronged effort to overturn the election. At the same time, it avoids legal and political pitfalls that could have delayed or derailed the prosecution.The lead charge, conspiracy under 18 U.S.C. 371, is a go-to charge for federal prosecutors. Count 1 charges a conspiracy to defraud the United States by obstructing and defeating the lawful counting of votes and certification of the election. Conspiracy is the perfect vehicle for describing a complex criminal scheme and identifying all the actors and everything they did.The conspiracy charge, which makes up most of the indictment, encompasses the tentacles of the scheme to overturn the election results. Pressuring state officials to overturn their elections, recruiting slates of fake electors from seven states, trying to corrupt the Justice Department to further the scheme, pressuring Mike Pence to throw out lawful votes and directing the mob to the Capitol on Jan. 6 — all are included as part of a single overarching conspiracy to defraud the United States.A conspiracy requires two or more people who agree to participate. This indictment lists but does not yet charge or formally identify six Trump co-conspirators. Mr. Smith clearly has enough evidence to charge those unindicted co-conspirators but has chosen not to — for now. This, too, is a smart tactical decision.Proceeding against Mr. Trump alone streamlines the case and gives Mr. Smith the best chance for a trial to be held and concluded before the 2024 presidential election. It’s possible some of the unindicted co-conspirators will cut a deal and testify for the prosecution. If not, there is plenty of time to charge them later.Counts 2 and 3 are conspiracy to obstruct an official proceeding and obstruction of a proceeding, under 18 U.S.C. Section 1512. Prosecutors have successfully used this statute to charge hundreds of the Jan. 6 Capitol rioters, including members of the Oath Keepers and Proud Boys, with disrupting the joint congressional proceeding to certify the election results.But when it comes to Mr. Trump and the senior people around him, this obstruction charge is much broader than the assault on the Capitol. The conspiracy to obstruct justice again encompasses all the different methods he and his allies used to seek to overturn the election results by thwarting the proceeding to certify the election. In addition, his dispatching supporters to the Capitol and then taking no steps to stop them for three hours potentially makes him liable for aiding and abetting that obstruction — even though he did not set foot in the Capitol himself. And aiding and abetting is part of the theory of the obstruction charge in Count 3.Count 4 is a civil rights violation under 18 U.S.C. Section 241. That statute makes it a crime to “injure, oppress, threaten or intimidate” any people in their exercise and enjoyment of rights guaranteed by the Constitution or laws. Based on the same evidence, this charge alleges that Mr. Trump and others conspired to injure one or more people by depriving them of their right to have their votes counted.For each of these charges, all aspects of the effort to overturn the election, including those that took place well before Jan. 6, may be introduced as part of a single multifaceted scheme and part of one story that proves all the charges.Prosecutors love having alternative legal theories underlying a single presentation of evidence. It’s a belt-and-suspenders approach: If a legal issue arises that weakens or eliminates one charge, the others remain, and the case can continue. And within the scheme are yet more backstops: If the evidence for one aspect of the scheme falters, the remaining aspects are still more than sufficient to prove the charge.Mr. Smith has also avoided some potential land mines that could be lurking in other charges.One charge that was not included in the indictment falls under 18 U.S.C. Section 2383, which makes it a crime to incite, assist or engage in a rebellion or insurrection against the United States or to give aid and comfort to such an insurrection. This charge was part of the referral from the Jan. 6 committee.It would have faced some potentially tricky First Amendment issues, to the extent it would have relied on Mr. Trump’s speech at the Ellipse on Jan. 6 to allege that he incited the riot. I believe those issues could be overcome, but the free speech battles over that charge would have been time-consuming and distracting because the speech could be easily characterized as a political rally.Seditious conspiracy under 18 U.S.C. Section 2384 is also absent. A number of Proud Boys and Oath Keepers have been convicted of violating that law, which prohibits conspiracies to overthrow the government. But violating the statute requires the use of force. Conviction presumably would require proof that Mr. Trump intended the Capitol riot to take place and that it was not just a political protest that got out of hand. That proof may be there, but the issue could easily become a major distraction.There will be those who say any case that does not charge Mr. Trump with insurrection or sedition is a whitewash that fails to hold him properly accountable. I think those critics are wrong. These charges will allow prosecutors to present the sweeping, multistate scheme to overturn the election, with all its different aspects, to the jury and the public. They are serious felony charges that carry hefty penalties.Although it might have been psychologically gratifying to see Mr. Trump charged with sedition, the name of the legal charge is less important than the facts that will make up the government’s case.This indictment presents detailed and overwhelming allegations. It reflects sound legal and tactical decisions that should allow the government to move quickly and put on a powerful case. The most significant prosecution of Mr. Trump is off to a strong start.Randall D. Eliason is a former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School. He writes the Sidebars blog.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More