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      Sidney Powell Seeks Distance From Trump Ahead of Georgia Trial

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      Ms. Powell, a lawyer who promoted conspiracy theories about election fraud after Donald J. Trump’s 2020 defeat, now says she never represented him or his campaign.Few defenders of Donald J. Trump promoted election fraud theories after his 2020 defeat as stridently as Sidney K. Powell. In high-profile appearances, often alongside other members of the Trump legal team, she pushed conspiracies involving Venezuela, Cuba and China, as well as George Soros, Hugo Chávez and the Clintons, while baselessly claiming that voting machines had flipped millions of votes.But now Ms. Powell, who next week will be one of the first defendants to go to trial in the Georgia racketeering case against Mr. Trump and 17 of his allies, is claiming through her lawyer that she actually “did not represent President Trump or the Trump campaign” after the election.That claim is undercut by Ms. Powell’s own past words, as well as those of Mr. Trump — and there is ample video evidence of her taking part in news conferences, including one where Rudolph W. Giuliani, then Mr. Trump’s personal lawyer, introduced her as one of “the senior lawyers” representing Mr. Trump and his campaign.Most of the Georgia charges against Ms. Powell relate to her role in a data breach at an elections office in rural Coffee County, Ga. There, on the day after the Jan. 6 riots, Trump allies copied sensitive and proprietary software used in voting machines throughout the state in a fruitless hunt for ballot fraud.At a recent court hearing, Ms. Powell’s lawyer, Brian T. Rafferty, said that his client “had nothing to do with Coffee County.”But a number of documents suggest otherwise, including a 392-page file put together by the Georgia Bureau of Investigation that was obtained by The New York Times. The file, a product of the agency’s investigation into the data breach, has been turned over to Georgia’s attorney general, Chris Carr, a Republican.It is not clear that Mr. Carr will take any action, given that Fulton County’s district attorney, Fani T. Willis, has already brought racketeering charges against Ms. Powell, Mr. Trump and 17 others. The Fulton indictment accuses them of participating in a “criminal organization” with the goal of subverting Georgia’s election results.Brian Rafferty, a lawyer representing Ms. Powell, spoke during a hearing this week.Pool photo by Alyssa PointerJury selection in Ms. Powell’s trial and that of Kenneth Chesebro, a legal architect of the plan to deploy fake electors for Mr. Trump in Georgia and other swing states, starts on Monday. Ms. Powell and Mr. Chesebro demanded a speedy trial, their right under Georgia law, while Mr. Trump and most other defendants are likely to be tried much later.Ms. Powell’s vow during a Fox Business Network appearance in 2020 to “release the kraken,” or a trove of phantom evidence proving that Mr. Trump had won, went viral after the election, though the trove never materialized. The next year, after Dominion Voting Systems sued her and a number of others for defamation, Ms. Powell’s lawyers argued that “no reasonable person would conclude” that some of her wilder statements “were truly statements of fact.”That led the office of Brad Raffensperger, Georgia’s Republican secretary of state, to crow that “The Kraken Cracks Under Pressure,” and precipitated a spoof of Ms. Powell on Saturday Night Live.Not all are convinced that her conduct veered into criminality.“You have to separate crazy theories from criminal conspiracies,” said Harvey Silverglate, a Boston-area lawyer and civil liberties advocate who has a unique perspective: He is representing John Eastman, another lawyer-defendant in the case, and is a co-author of a 2019 book with Ms. Powell that looked at prosecutorial overreach.“That’s the big dividing line in this whole prosecution — what is criminal and what is wacky, or clearly erroneous or overreaching,” Mr. Silverglate said.Ms. Powell, he added, is “in a tougher position” than his own client, because the accusations against her go beyond the notion that she merely gave legal advice to the Trump campaign as it sought to overturn Mr. Biden’s win. But Mr. Silverglate also said he didn’t think prosecutors would win any convictions in the Georgia case or the three other criminal cases against Mr. Trump in New York, Florida and Washington, given how politicized the trials will be.“I think in any jurisdiction — even Washington, D.C. — you will have at least one holdout,” he said.Ms. Powell is a North Carolina native and a onetime Democrat who spent a decade as a federal prosecutor in Texas and Virginia before establishing her own defense practice. In 2014, she wrote a book, “Licensed to Lie: Exposing Corruption in the Department of Justice.” She billed it as an exposé of a department riddled with prosecutors who used “strong-arm, illegal, and unethical tactics” in their “narcissistic pursuit of power.”Ms. Powell appeared on Mr. Trump’s radar when she represented his national security adviser, Michael Flynn, who in 2017 pleaded guilty to lying to federal investigators about his contacts with Russia’s ambassador to the United States during the presidential transition. He later tried to withdraw the plea.Ms. Powell, appearing on Fox News, argued that the case should never have been brought and that the F.B.I. and prosecutors “broke all the rules.” Mr. Trump would go on to pardon Mr. Flynn a few weeks after losing the 2020 election.On election night itself, Ms. Powell was at the White House watching the returns come in, according to her testimony to House investigators. When they asked what her relationship with Mr. Trump had been, she declined to answer, she said, because of “attorney-client privilege.”By Nov. 14, Mr. Trump, in a tweet, specifically referred to Ms. Powell as a member of his “truly great team.” Ms. Powell’s lawyer has pointed out that she was not paid by the Trump campaign. But the Trump connection helped her raise millions of dollars for Defending the Republic, her nonprofit group that is dedicated in part to fighting election fraud.Around that time, Ms. Powell, Mr. Flynn and other conspiracy-minded Trump supporters began meeting at a South Carolina plantation owned by L. Lin Wood, a well-known plaintiff’s attorney. According to the Georgia Bureau of Investigation file, it was decided there that an Atlanta-based technology firm, SullivanStrickler, “would be used to capture forensic images from voting machines across the nation to support litigation” and that “Powell funded SullivanStrickler’s efforts.”By late November, the Trump team grew exasperated with Ms. Powell’s wild claims and publicly cut ties. But the schism was short-lived; she would make several trips to the White House in the weeks that followed.On Dec. 18, Ms. Powell attended a heated Oval Office meeting with Mr. Trump and Mr. Giuliani that the Georgia indictment lists as an “overt act” in furtherance of the election interference conspiracy. According to the Georgia indictment, they discussed “seizing voting machines” as well as possibly naming Ms. Powell a special counsel to investigate allegations of voter fraud, though the appointment was never made.Sidney Powell appeared on a screen during a July 2022 hearing of the House committee investigating the Jan. 6 attacks.Doug Mills/The New York TimesOn Jan. 7, a number of Trump allies, along with SullivanStrickler employees, traveled to Coffee County. “We scanned every freaking ballot,” Scott Hall, a Georgia bail bondsman who made the trip, recalled in a recorded phone conversation at the time. He pleaded guilty to five misdemeanors last month and agreed to cooperate with prosecutors.Misty Hampton, a defendant in the racketeering case who was the Coffee County elections administrator, welcomed the Trump-aligned team into the building. But the Georgia Bureau of Investigation file makes clear that the county election board did not officially approve the visit and that local officials lacked authority over the voting equipment. (Ms. Hampton, Ms. Powell and other Fulton County defendants are among the subjects of the state investigation listed in the G.B.I. file, as is Katherine Friess, a lawyer who worked with Mr. Giuliani after the election.)While SullivanStrickler didn’t deal exclusively with Ms. Powell, a number of the firm’s employees have asserted that Ms. Powell was the client for its work copying the Coffee County election data, according to the G.B.I. investigation.“The defense’s stance that Sidney Powell was not aware of the Coffee County breaches is preposterous,” said Marilyn Marks, executive director of the Coalition for Good Governance, a plaintiff in civil litigation over Georgia’s voting security that unearthed much of what happened in Coffee County.According to the racketeering indictment, the data copied that day included “ballot images, voting equipment software and personal voter information.” SullivanStrickler invoiced Ms. Powell more than $26,000 for its work, and her organization, Defending the Republic, paid the bill.Mr. Raffensperger, the secretary of state, subsequently replaced Coffee County’s voting machines and said that “the unauthorized access to the equipment” had violated Georgia law. 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      Peter Navarro Convicted of Contempt of Congress Over Jan. 6 Subpoena

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      The verdict made Mr. Navarro the second top adviser to former President Donald J. Trump to be found guilty of contempt for defying the House committee’s investigation.Peter Navarro, a former trade adviser to President Donald J. Trump, was convicted on Thursday of two counts of criminal contempt of Congress for defying a subpoena from the House select committee investigating the Jan. 6, 2021, attack on the Capitol.The verdict, coming after nearly four hours of deliberation in Federal District Court in Washington, made Mr. Navarro the second top adviser of Mr. Trump’s to be found guilty in connection to the committee’s inquiry. Stephen K. Bannon, a former strategist for Mr. Trump who was convicted of the same offense last summer, faces four months in prison and remains free on appeal.Mr. Navarro, 74, stood to the side of his lawyers’ table, stroking his chin as the verdict was read aloud. Each count carries a maximum of one year in prison and a fine of up to $100,000. A hearing to determine his sentence was scheduled for January.Speaking outside the courthouse afterward, Mr. Navarro repeatedly vowed to appeal his conviction.“I am willing to go to prison to settle this issue, I’m willing to do that,” he said. “But I also know that the likelihood of me going to prison is relatively small because we are right on this issue.”The jury’s decision handed a victory to the House committee, which had sought to penalize senior members of the Trump administration who refused to cooperate with one of the chief investigations into the Capitol riot.The trial also amounted to an unusual test of congressional authority. Since the 1970s, referrals for criminal contempt of Congress have rarely resulted in the Justice Department’s bringing charges. Mr. Navarro was indicted last June on two misdemeanor counts of contempt, one for failing to appear for a deposition and another for refusing to provide documents in response to the committee’s subpoena.The rapid pace of the trial reflected, in part, the fact that the case turned on a straightforward question, whether Mr. Navarro had willfully defied lawmakers in flouting a subpoena. Even before the trial began, Judge Amit P. Mehta, who presided over the case, dealt a blow to Mr. Navarro by ruling that he could not use in court what he has publicly cast as his principal defense: that Mr. Trump personally directed him not to cooperate and that he was protected by those claims of executive privilege.Mr. Navarro, a Harvard-trained economist and a strident critic of China, devised some of the Trump administration’s most adversarial trade policies toward the country. Once the pandemic took hold, he helped coordinate the United States’s response by securing equipment like face masks and ventilators. But after the 2020 election, he became more focused on plans to keep Mr. Trump in power.Mr. Navarro was of particular interest to the committee because of his frequent television appearances in which he cast doubt on the election results and peddled specious claims of voter fraud.He also documented those assertions in a three-part report on purported election irregularities, as well as in a memoir he published after he left the White House. In the book, Mr. Navarro described a strategy he had devised with Mr. Bannon known as the Green Bay Sweep, aimed at overturning the results of the election in key swing states that had been called for Joseph R. Biden Jr.But when the committee asked Mr. Navarro to testify last February, he repeatedly insisted that Mr. Trump had ordered him not to cooperate. By asserting executive privilege, he argued, the former president had granted him immunity from Congress’s demands.The question of executive privilege prompted more than a year of legal wrangling over whether Mr. Navarro could invoke that at a time when Mr. Trump was no longer president. Judge Mehta ruled last week that Mr. Navarro could not raise executive privilege in his defense, saying that there was no compelling evidence that Mr. Trump had ever told him to ignore the committee.Asked after his verdict why he had not merely asked Mr. Trump to provide testimony that corroborated his claims, Mr. Navarro said the former president was too preoccupied with his own legal troubles.“You may have noticed that he’s fighting four different indictments in three different jurisdictions thousands of miles away, OK?” he said. “We chose not to go there.”In closing arguments on Thursday, prosecutors and defense lawyers dueled over whether Mr. Navarro’s refusal to cooperate with the committee amounted to a willful defiance of Congress, or a simple misunderstanding.“The defendant, Peter Navarro, made a choice,” said Elizabeth Aloi, a prosecutor. “He didn’t want to comply and produce documents, and he didn’t want to testify, so he didn’t.”Detailing the House committee’s correspondence with Mr. Navarro, Ms. Aloi said that even after the panel asked Mr. Navarro to explain any opposition he had to giving sworn testimony, he continued to stonewall.“The defendant chose allegiance to President Trump over compliance with the subpoena,” she said. “That is contempt. That is a crime.”Stanley Woodward Jr., a lawyer for Mr. Navarro, countered that the government had not successfully shown that Mr. Navarro’s failure to comply was anything other than “inadvertence, accident or mistake.” Mr. Woodward presented next to no evidence in Mr. Navarro’s defense and instead sought to poke holes in the government’s case that Mr. Navarro had deliberately disregarded the committee.“Where was Dr. Navarro on March 2, 2022?” Mr. Woodward asked, referring to the date that Mr. Navarro was instructed to appear before the panel.“We don’t know,” he said. “Why didn’t the government present evidence to you about where Dr. Navarro was or what he was doing?”Prosecutors also emphasized the role that Mr. Navarro’s falsehoods may have played in drawing scores of rioters to Washington to disrupt Congress’s certification of the results.That caused Mr. Woodward to bristle, telling the jury that the government was relying on emotional descriptions to tarnish Mr. Navarro’s image, rather than proving he ever intended to blow off lawmakers.Others in Mr. Trump’s inner circle cooperated with the panel in a more limited fashion and avoided criminal charges.Two of Mr. Trump’s advisers, Roger J. Stone Jr. and Michael T. Flynn, appeared before the committee but declined to answer most of its questions by citing their Fifth Amendment rights against self-incrimination. Mr. Trump’s final chief of staff, Mark Meadows, and his deputy, Dan Scavino, each negotiated terms with the committee to provide documents but not testimony.During the trial, prosecutors emphasized that Mr. Navarro could have taken a similar tack. The panel had informed Mr. Navarro that if he sought to invoke privilege, he should do so in person, as well as list any documents he believed were protected.“Even if he believed he had an excuse, it does not matter,” Ms. Aloi told members of the jury moments before they left the courtroom to deliberate. “He had to comply with the subpoena no matter what, and assert any privileges in the way Congress set forth.” More

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      Prosecutors Rest Case Against Peter Navarro in Contempt Trial

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      The defense also rested, with closing arguments expected to begin Thursday morning. The fast clip of the trial suggested that the jury could deliberate shortly after.Prosecutors rested their case on Wednesday in the criminal trial of Peter Navarro, who served as President Donald J. Trump’s trade adviser, saying he willfully ignored lawmakers in refusing to appear last year before the House committee investigating the Capitol attack.After delivering their opening statement, government lawyers took just three hours to introduce all their evidence, arguing that convicting Mr. Navarro revolved around one straightforward question: Did he show contempt for Congress when he disregarded the committee’s subpoena for documents and testimony?“This case is just about a guy who didn’t show up for his testimony? Yes, this case is that simple,” a prosecutor, John Crabb Jr., said in Federal District Court in Washington. “But this case is also that important — we are a nation of laws, and Mr. Navarro acted like he was above the law.”The defense also rested, calling no witnesses and presenting no evidence, with closing arguments expected to begin Thursday morning. The fast clip of the trial suggested that the jury could deliberate shortly after.Mr. Navarro, 74, faces two counts of contempt of Congress, making him the second top official of Mr. Trump’s to face criminal charges after declining to cooperate with the House committee. If convicted, Mr. Navarro could face up to a year in jail and a fine of up to $100,000 for each count.Stephen K. Bannon, who worked as a strategist and adviser to Mr. Trump in the early months of his administration, was also indicted on two counts of contempt of Congress after defying a subpoena from the committee. He was convicted last summer and sentenced to four months in prison, though he remains free while his appeal is pending.Lawyers for Mr. Navarro, limited in what defense they could make in court, sought to paint him as a diligent policy adviser who got caught up in fraught legal negotiations with the Jan. 6 committee.One of his lawyers, Stanley Woodward Jr., said that the Justice Department’s suggestion that Mr. Navarro was a critical witness to the panel’s investigation was overstated, describing prosecutors’ opening statement as theatrical.“It’s like one of those movies where you get nothing after the preview,” he said, while Mr. Navarro, who stood behind his lawyers’ table, paced back and forth and listened intently.The prosecution on Wednesday focused on correspondence between Mr. Navarro and the Jan. 6 committee in February last year, calling as witnesses three staff members on the panel who helped draft and serve the subpoena to Mr. Navarro.David Buckley, the staff director for the committee, and Daniel George, a senior investigative counsel, testified that the panel came to view Mr. Navarro as one of the more prominent public officials sowing doubt about the integrity of the 2020 election.The committee was particularly interested in a three-part report Mr. Navarro wrote claiming widespread voter fraud and a memoir he published after he left the White House.In the book, Mr. Navarro laid out a strategy he had devised with Mr. Bannon known as the Green Bay Sweep, intended to reject the results of the election in key swing states that had been called for Joseph R. Biden Jr. He described it as “our last, best chance to snatch a stolen election from the Democrats’ jaws of deceit.”But Mr. Navarro rebuffed their requests for an interview with the committee, both men testified.Mr. George, who formally notified Mr. Navarro about the subpoena, said that before he had even sent the subpoena itself, which included a list of documents the committee was seeking, Mr. Navarro responded minutes later with an email that simply stated, “executive privilege.”“I didn’t make much of that because we hadn’t communicated to him what we wanted to speak about,” Mr. George said.Mr. Navarro and his lawyers were left to mount a circuitous defense after the judge presiding over the case, Amit P. Mehta, rejected their main argument before the trial began: that Mr. Trump, who was no longer president at the time, had directed him to ignore the subpoena and that he was shielded by executive privilege. Mr. Navarro has consistently maintained outside court that he was merely acting on the orders of Mr. Trump, who Mr. Navarro says had expressly asked him and other senior advisers not to cooperate with the committee.Defense lawyers on Wednesday instead pinned blame on the House committee, saying that Mr. Navarro had referred members of the panel to Mr. Trump directly, but lawmakers did not follow up with him to confirm whether Mr. Navarro was covered by any privilege.Under cross-examination, Mr. George acknowledged that after Mr. Navarro initially responded to requests from the committee, members did not approach Mr. Trump or his lawyers to clarify whether he had expressly asked Mr. Navarro not to cooperate, citing executive privilege. More

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      Ex-Trump Aide Peter Navarro to Face Trial Over Defiance of Jan. 6 Panel

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      A federal judge allowed the trial to proceed after finding little evidence that the former president authorized Mr. Navarro to ignore a subpoena from Congress.For weeks after the 2020 election had been called, Peter Navarro, a White House adviser to President Donald J. Trump, worked closely with other senior aides to keep Mr. Trump in power for a second term.After being subpoenaed last year by the House committee investigating the Jan. 6, 2021, riot, which sought to learn more about those efforts, Mr. Navarro refused to comply, insisting that Mr. Trump had directed him not to cooperate and dismissing the subpoena as “illegal” and “unenforceable.”Now, after more than a year of legal wrangling, Mr. Navarro, 74, will defend those claims in a trial that starts Tuesday, when jury selection is expected to begin in Federal District Court in Washington. The case centers on a relatively simple question: whether he showed contempt for Congress in defying the House committee’s request for documents and testimony.The trial itself may be relatively short, and if Mr. Navarro were to be convicted on the two counts of contempt of Congress he is charged with, he could face up to a year in jail and a fine of up to $100,000 for each count.Since Mr. Navarro was indicted in June of last year, he has maintained that he is protected by the former president’s claim of executive privilege.Prosecutors intend to argue that Mr. Navarro refused of his own volition and that neither Mr. Trump nor his lawyers have confirmed whether Mr. Navarro sought or received his approval.The judge in the case, Amit P. Mehta, has already dealt a blow to Mr. Navarro, ruling that he cannot rely on executive privilege as a pillar of his defense. He refused to dismiss the case after concluding that Mr. Navarro had failed to produce convincing evidence that he and Mr. Trump ever discussed his response to Congress.Describing Mr. Navarro’s defense as “pretty weak sauce,” Judge Mehta emphasized that he had presented no written communications or even a “smoke signal” that would bolster his contention.“I still don’t know what the president said,” Judge Mehta said. “I don’t have any words from the former president.”“I don’t think anyone would disagree that we wish there was more here from President Trump,” Mr. Navarro’s lawyer, Stanley Woodward Jr., replied.Still, outside of court, Mr. Navarro has continued to frame the case as a fundamental dispute between the legislative and executive branches, calling the fight over executive privilege “open questions” in the law and pledging to appeal.Mr. Navarro is one of two Trump aides to face criminal charges after the House committee’s investigation. Stephen K. Bannon, another of Mr. Trump’s senior advisers, was convicted last summer on two counts of contempt of Congress and sentenced to four months in prison.After the 2020 election, Mr. Bannon and Mr. Navarro concocted a plan, known as the Green Bay Sweep, aimed at delaying certification of the outcome of the election. The strategy involved persuading Republican lawmakers to halt the counting of Electoral College votes on Jan. 6 by repeatedly challenging the results in various swing states.When the House committee investigating the Jan. 6 attack issued a subpoena, Mr. Bannon similarly refused to comply.Others in Mr. Trump’s inner circle were less combative in resisting the panel’s efforts.Two of Mr. Trump’s advisers, Roger J. Stone Jr. and Michael T. Flynn, ultimately appeared before the committee but declined to answer most of its questions by citing their Fifth Amendment rights against self-incrimination. Mr. Trump’s final chief of staff, Mark Meadows, and his deputy, Dan Scavino, negotiated the terms of their responses to subpoenas, providing documents but not testimony. None of the four men faced criminal charges.The filing of charges against Mr. Navarro was widely seen as proof that the Justice Department was willing to act aggressively against one of Mr. Trump’s top allies as the House scrutinized the actions of the former president and his advisers and aides in the events leading up to and during the Capitol attack.The trial could also shed new light on Mr. Navarro’s communications with the White House at key moments during Mr. Trump’s final days in power.One possible witness for the defense is Liz Harrington, a communication aide for Mr. Trump who helped spread false claims of election irregularities in the months after the 2020 election. Ms. Harrington had been set to testify last week about Mr. Navarro’s claims of executive privilege, but could instead provide written testimony about the extent of Mr. Navarro’s contact with Mr. Trump and his aides.Alan Feuer More

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      In Georgia, a Test of Rudy Giuliani’s Loyalty to Trump

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      Michelle Cottle and Donald Trump has been indicted, again. But this time, he’s got company. The Opinion writers Michelle Cottle and David French discuss why that makes this indictment different — and potentially more effective — than the others.(A full transcript of this audio essay will be available midday on the Times website.)Illustration by Akshita Chandra; photograph by Doug Mills/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 Times Opinion Short was produced by Phoebe Lett. It was edited by Stephanie Joyce and Annie-Rose Strasser. Mixing by Carole Sabouraud. Original music by Isaac Jones. Fact-checking by Mary Marge Locker and Kate Sinclair. Audience strategy by Shannon Busta, Kristina Samulewski and Derek Arthur. More

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      Why the Fani Willis Prosecution of Donald Trump Is Indispensable

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      When the Fulton County, Ga., district attorney, Fani Willis, filed criminal charges against Donald Trump and over a dozen of his allies for their attempt to overturn Georgia’s 2020 presidential election results, she did something ingenious.In contrast to the special counsel Jack Smith’s latest laser-focused federal indictment of Mr. Trump, Ms. Willis charges a wide range of conspirators, from people in the Oval Office to low-level Georgia G.O.P. functionaries, and is the first to plumb the full depths, through a state-focused bathyscaph, of the conspiracy.Her case also provides other important complements to the federal matter: Unlike Mr. Smith’s case, which will almost certainly not be broadcast because of federal standards, hers will almost certainly be televised, and should Mr. Trump or another Republican win the White House, Ms. Willis’s case cannot be immediately pardoned away. It offers transparency and accountability insurance. As she said in her news conference on Monday night, “The state’s role in this process is essential to the functioning of our democracy.”But the indictment stands out, above all, because Georgia offers uniquely compelling evidence of election interference — and a set of state criminal statutes tailor-made for the sprawling, loosely organized wrongdoing that Mr. Trump and his co-conspirators are accused of engaging in. It is a reminder of the genius of American federalism: When our democracy is threatened, states have an indispensable part to play in protecting it.At 98 pages, Ms. Willis’s indictment is more than twice the size of Mr. Smith’s indictment in his Jan. 6 case and contains 19 defendants to his one. The indictment charges 41 counts (to Mr. Smith’s four) — among them, Georgia election crimes like solicitation of violation of oath by public officer (for Mr. Trump’s infamous demand to Georgia’s secretary of state, Brad Raffensperger, to just “find 11,780 votes”) and state offenses like forgery and conspiracy to commit forgery (for creating fake electoral certificates) and conspiracy to commit computer trespass (for unlawfully accessing election machines in Coffee County to attempt to prove that votes were stolen).The large cast of defendants populates a complete conspiracy chain of command and features the famous (Mr. Trump, his chief of staff Mark Meadows and his lawyer Rudy Giuliani), the infamous (the Trump attorneys John Eastman, Ken Chesebro and Jeffrey Clark) and the otherwise unknown (including Georgia state false electors and local Trump campaign allies without whom the plot would have stalled).Ms. Willis ties them all together by levying one charge against Mr. Trump and each of the 18 other defendants under Georgia’s Racketeer Influenced and Corrupt Organization Act, or RICO, accusing Mr. Trump and his co-conspirators of functioning as a criminal gang.American law has long recognized through the crime of conspiracy that combinations of criminals are more dangerous than lone wolves. RICO is conspiracy on steroids, providing for stiffer penalties and other advantages like bringing multiple loosely connected conspiracies under one umbrella.Georgia has one of the most capacious RICO statutes in the country. The state’s legislature enacted it specifically to “apply to an interrelated pattern of criminal activity” and mandated courts to “liberally construe” it to protect the state and its citizens from harm. Under the law, prosecutors can charge a sprawling criminal enterprise and even include individuals who may not have known “of the others’ existence,” as one court put it.Here, the statute may be triggered by violations of an array of federal crimes as well as over 40 charges specific to Georgia, including forgery, false statements and influencing witnesses.Georgia RICO has become Ms. Willis’s signature. She applied it in cases like the Atlanta teacher cheating scandal, in which educators engaged in a wide-ranging scheme to inflate scores on standardized tests, and the prosecution of the rapper Young Thug, in which he co-founded a street gang that was accused of committing almost 200 criminal acts.In using RICO, Ms. Willis accuses Mr. Trump of functioning like a gang leader overseeing a theft ring, except instead of stealing cash or cars, he and his allies are accused of attempting to purloin the Georgia presidential election results.The overall charge includes four core schemes. The first was to pressure government officials to advance the objective of securing Georgia’s electoral votes for Mr. Trump, even though he lost. For the evidence here, in addition to Mr. Trump’s call to Mr. Raffensperger, Ms. Willis details other efforts by Mr. Trump and his co-defendants — including Mr. Giuliani’s pressuring of state legislators, Mr. Meadows’s pressure on election authorities and the co-conspirators’ lies and intimidation targeting the ballot counters Ruby Freeman and Wandrea Moss, who goes by Shaye. This also includes efforts in Washington that affected Georgia, such as the Department of Justice lawyer Jeffrey Clark’s preparation of an allegedly fraudulent draft letter targeting the state.Two-person audit boards working to recount ballots at the Gwinnett County Board of Registrations and Elections in Lawrenceville, Ga.Damon Winter/The New York TimesThe second scheme was the organization of electors falsely proclaiming that Mr. Trump was the winner in Georgia. Ms. Willis alleges that Mr. Trump personally participated in this effort; for example, he called the Republican National Committee with Mr. Eastman from the White House to organize the fake slates of electors, including in Georgia. And she charges a great deal of other activity in and outside Georgia.The third scheme was the unlawful accessing of voting machines in Coffee County, a rural county southeast of Atlanta. The indictment asserts that, after a White House conversation about getting access to election machines to prove supposed vote theft, Sidney Powell, a lawyer tied to Mr. Trump, along with Trump campaign allies and computer consultants, conspired to gain access to voting equipment in Coffee County.Ms. Willis’s inclusion of that plan spotlights what has been one of the more neglected aspects of the nationwide effort. Mr. Smith does not even mention it in his federal indictment. Yet the Willis indictment alleges that this was part of a plan discussed (in general terms) in the Oval Office.The fourth and final scheme is what has become a trademark allegation against Mr. Trump and his circle: obstruction and cover-up. Ms. Willis alleges that members of the conspiracy filed false documents, made false statements to government investigators and committed perjury during the Fulton County judicial proceedings.In addition to the RICO charges, each of the 19 defendants is charged with at least one other offense. Perhaps most telling among these is the charge against Mr. Trump and six others of felony solicitation of violation of oath by a public officer. This fits Mr. Trump’s demand for those 11,780 votes like a glove.Mr. Trump has already begun to defend himself, trying to get Ms. Willis and her special grand jury disqualified, based on an array of supposed conflicts and other grievances. The Georgia courts have already repeatedly rejected those arguments. He will also probably employ defenses similar to ones he and his legal team have laid out in pending criminal matters elsewhere, seeking removal to federal court and advancing First Amendment and intent defenses that have been picked apart by many legal experts.He and his co-conspirators may attempt to challenge the RICO charges on technical grounds, for example, arguing that the conspiracies are not sufficiently related under the statute. But Ms. Willis powerfully alleges otherwise, in particular emphasizing the unifying objective of Mr. Trump’s wrongfully seizing Georgia’s electoral votes.That all of this is likely to play out on television only deepens the historic nature of the indictment. Georgia law makes generous allowance for court proceedings to be broadcast, with the state rightly considering open courtrooms to be “an indispensable element of an effective and respected judicial system.” Assuming that rules against televising federal trials stand, the Georgia trial would be the only one that the public could watch as it unfolds. We know from the Jan. 6 hearings — as well as, in an earlier era, the Watergate hearings — the power of seeing and hearing these events. And they will remain for viewing in posterity as a lesson in the rule of law.There is one final important advantage of the Georgia case. It is shielded from what may be Mr. Trump’s ultimate hope: the issuance of a pardon should he or another Republican be elected president in 2024 (or a command by a Republican that the Justice Department simply drop the case). A president’s power to pardon federal offenses does not extend to state crimes.And pardons in Georgia are not an unreviewable power vested solely in the chief executive. They are awarded by the State Board of Pardons and Paroles — and are not even available until five years after completion of all sentences.The indictment from Ms. Willis strongly complements the federal case. It adds dimensionality, transparency and additional assurance of accountability for the former president and those who betrayed democracy in Georgia.Norman Eisen was special counsel to the House Judiciary Committee during the first impeachment of Donald Trump. Amy Lee Copeland, a former federal prosecutor, is a criminal defense and appellate attorney in Savannah, Ga.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

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      Let’s Have a Face-Off on Trump’s Indictment

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      The latest Trump indictment is much more complicated than the first two Trump indictments and probably any indictment that would come out of Fulton County, Ga. It attacks a scheme that played out across several weeks, in several states, involving dozens of others, including Trump-allied activists, those cited as co-conspirators and G.O.P. hacks who tried to overturn the 2020 election in state after state.I thought the best way to understand the challenges the prosecution and the defense would face before jurors and appellate judges would be to let both sides have their say — through me. Each side’s factual and legal arguments will play out in hundreds of pages of briefs and countless hours of trial testimony and oral advocacy. Let me cut to the chase, arguing the primary issues without, I hope, losing too much of the complexity of the case.Imagine two lawyers arguing their cases for you, a nonlawyer:Prosecution: Look, I know the indictment is long — and the trial may well last for weeks — but the elevator pitch is simple. Donald Trump conspired with a number of other individuals to overturn an election that he knew he lost. That scheme included a number of elements, from deliberately lying to state legislators to defraud them into altering the results to orchestrating a fake elector scheme that cast sham Electoral College votes to threatening a state official to help Trump “find” the votes necessary to change the outcome in Georgia.Defense: Sure, that all sounds compelling, but on closer examination, the case collapses. Let’s just start with the word “knew.” You’re going to present evidence that a number of administration officials and others rendered an opinion that the election was fair and that Joe Biden won. We’re going to present evidence that Trump received an avalanche of legal counsel to the contrary. He heard from lawyer after lawyer who told him that there may well have been decisive amounts of fraud in key swing states. Trump heard from two sets of lawyers who disagreed with each other, and he decided to follow the advice of one team of attorneys over the other. Following bad legal advice shouldn’t land anyone in jail.And you well know that each and every statute in your indictment requires a showing of criminal intent. For example, your most attention-grabbing count — 18 U.S.C. Section 241 — which protects the right to vote from criminal conspiracies, requires proving my client possessed “the intent to have false votes cast.” He intended for electors to cast true votes, in his favor.You also know that the viability of two other counts — obstruction of an official proceeding and conspiracy to obstruct an official proceeding — “hangs on by a thread,” in the words of Lawfare’s Saraphin Dhanani. The statute itself is poorly written and may not even apply to Trump’s conduct, and the intent requirement may be more strenuous than you believe. After all, in an appeals court ruling upholding a verdict against a Jan. 6 defendant, Judge Justin Walker wrote in his concurrence that to prove corrupt intent, you don’t just have to prove a defendant knew he was obtaining an unlawful benefit but also that obtaining that unlawful benefit was his “objective” or “purpose.”Good luck making that case. Trump’s objective was to expose fraud.Prosecution: The people you call Trump’s lawyers, we call his co-conspirators. A number of the people that you say Trump relied on weren’t providing legal counsel in good faith; they were scheming right along with him to commit crimes. And you don’t have to trust my word on that. Look at court cases and bar actions. Several of Trump’s co-conspirators have been fined by courts and now face the potential loss of their law licenses because of the advice they gave.In fact, “advice” is the wrong word. Lawyers aren’t fined and disbarred for giving good-faith legal advice. But co-conspirators are punished for breaking the law.Moreover, you might fool Trump supporters, but you won’t fool the jury. Proving intent is not nearly as difficult as you’re telling the public. Defendants lie about their intentions all the time, and juries are fully capable of seeing through those lies. We’re going to show the jury that every credible official gave Trump the same advice, and we’re going to show that Trump thought at least some of his allies’ advice was “crazy” and that he thought Mike Pence was “too honest.” Cassidy Hutchinson told the House Jan. 6 committee that Trump told his chief of staff, Mark Meadows, something like, “I don’t want people to know we lost, Mark. This is embarrassing. Figure it out. We need to figure it out. I don’t want people to know that we lost.”The man wasn’t trying to expose fraud. He was committing fraud.Defense: You believe that Trump told Pence he was too honest? Or that he said Sidney Powell’s case was crazy? Your witnesses are lying. He never said Pence was too honest.Prosecution: So you’re telling me that Trump is going to take the stand and deny those statements to the jury? And then I get to cross-examine him?Defense: I’ll get back to you on that.Prosecution: And don’t get me started on that First Amendment defense I’ve watched you make on Fox News. First-year law students learn, as a former federal prosecutor told The Times, “there is no First Amendment privilege to commit crimes just because you did it by speaking.” Look at the indictment again. We acknowledge that Trump had the right to challenge the election and to file all those absurd lawsuits. We’re not indicting him for any of that. We’re not even indicting him simply for lying. We know that politicians have lied about elections practically since the founding of this country. We’re indicting him for entering into conspiracies, and we both know there is no First Amendment privilege to conspire to cast false electoral votes. Courts have heard cases involving fraud and conspiracies against rights — including voting rights — for decades, and the First Amendment doesn’t shield proven conspirators from criminal liability.Defense: So we’re talking about court precedents now, are we? The key precedents you cite are old. The most important Supreme Court precedent involving conspiracies against rights was written by Thurgood Marshall. Let’s just say that his jurisprudence is out of fashion with the court’s conservative majority.In reality, the Supreme Court has been busy narrowing the reach of federal fraud statutes. If you haven’t read National Review’s editorial about the case, I’d urge you to read it now. Fraud statutes are designed to prevent citizens from swindling the government out of money or tangible property. The obstruction statute is designed to stop witness tampering or destruction of evidence, not to stop litigants from making bad legal arguments about election fraud. And the conspiracy-against-rights count applies a Reconstruction-era statute that was designed to, as National Review argues, “punish violent intimidation and forcible attacks” against Black Americans who tried to vote.In other words, even if you prove the facts of your case, the statutes just don’t apply.Prosecution: Yes, I’ve read the National Review editorial, but might I direct you to the former prosecutor Ken White’s comprehensive response? The bottom line is that you’re describing what you want the law to be, not what the law is. For example, your arguments about the fraud count don’t apply to the actual fraud statute we charged. Moreover, National Review’s interpretation of the law conflicts with court precedent that’s more than a century old.In 1910 the court wrote that the definition of a conspiracy to defraud the United States “is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government.”I know you don’t think that Section 1512, the obstruction statute, applies to this case, but the United States Court of Appeals for the D.C. Circuit upheld our broader interpretation just this April — in a case you already cited, by the way. You’re banking on the Supreme Court disagreeing with a decision rendered by a circuit court majority that included a judge who once clerked for Brett Kavanaugh.As for Section 241, which prohibits a “conspiracy against rights,” once again our interpretation of the statute is supported by generations of precedent. A review of relevant case law takes us from a series of critical cases in the 1930s to the 1974 Supreme Court opinion I talked about earlier and to a conviction this year of a man named Douglass Mackey. He engineered a scheme to deceive Hillary Clinton voters into “voting” by text message rather than casting an actual, legal ballot. His scheme wasn’t violent or forcible, but it was certainly illegal.Look, lawyers make good-faith arguments to reverse or revise precedent all the time. Sometimes those arguments succeed. But you need to tell your client that the existing case law is on my side, not yours, and if he is resting his defense on the Supreme Court coming to his aid, you might want to remind him that even the justices he appointed rejected or refused to hear his legal arguments many times before.Defense: There’s a Supreme Court case you failed to mention, McDonnell v. United States. I know it doesn’t involve the statutes at issue here, but the case shows the Roberts court’s desire to narrow broad criminal statutes. A unanimous Supreme Court threw out the conviction of the former Virginia governor Robert McDonnell on the grounds that the lower courts had construed the term “official act” too broadly in a bribery case. This is a clear indication that the Supreme Court is looking to limit, not expand, the interpretation of federal criminal statutes.Also, remember the rule of lenity? When a law is unclear or ambiguous, the benefit of the doubt goes to the defendant, not the government. And again, this is a principle embraced by justices across the ideological spectrum. This term, the court used the rule of lenity to rule in favor of a defendant in a Bank Secrecy Act case, and Justices Ketanji Brown Jackson and Neil Gorsuch were in lock step agreement. I can read the judicial signs, and the signs point toward narrowing the law.Prosecution: We’re not applying new or novel interpretations to criminal law. Every single count is supported not just by the text but also by a vast amount of precedent. You say the age of our precedent is a problem. I say it’s an advantage. The law has already been interpreted. It is already clear. There is no legal ambiguity in casting fake electoral votes or in utilizing clear threats of criminal prosecution to try to coerce state officials to change the outcome of an election.Your best legal argument rests on what the law might be. Our legal argument rests on what the law actually is. You need to disrupt American law to prevail. We simply need to persuade a conservative court to remain conservative, to follow its instincts to resist radical change.Defense: We’ve not yet begun to fight. I’ve barely scratched the surface of your proof problems. Your indictment might fool Democrats and those Never Trump traitors, but it doesn’t fool me. For example, in Paragraph 66 of the indictment, you say that “fraudulent electors convened sham proceedings” to cast “fraudulent electoral ballots” at the “direction” of Trump.But that’s a conclusory statement. Where is the actual evidence that he was in command of that process and not one of his lawyers and allies? You’re making a big, bold claim, and that’s going to require big, bold evidence. And that indictment just doesn’t deliver the goods.Prosecution: The indictment describes in detail Trump’s intimate cooperation with his co-conspirators. Are you arguing they were acting on their own? That Trump was just a bystander to the fraudulent efforts on his behalf? Trump was so involved in the effort to overturn the election that he made calls. He said Georgia’s secretary of state and legal counsel faced a “big risk” of criminal prosecution if they (as we said in our indictment) “failed to find election fraud as he demanded.” He called the Republican National Committee chairwoman to put the fake electors plan in motion. Yes, Trump had free-agent allies who tried to help him steal the election, but none of the co-conspirators were free agents. They were all his partners in crime. Besides, as you well know, this indictment is the summary of our evidence, not the sum total of our evidence. Not only do we possess the evidence sufficient to make that claim; the grand jury is still at work.I think this exercise spotlights the most important issues, for now. Both sides have barely begun to fight, and the public has barely begun to consider the full range of evidence and arguments in the case.Moreover, this piece doesn’t deal at all with the effect of the prosecution on the body politic. On Tuesday, The Times published a compelling piece by a Harvard Law School professor, Jack Goldsmith, warning of the consequences of prosecuting a former president during an election campaign.My view is that the American government faces greater risks if prosecutors don’t try to punish Trump for his coup attempt. As I wrote on the day of the indictment, it’s necessary to prosecute Trump on these facts — not because a conviction is inevitable but because our nation cannot set a precedent that presidents enjoy a zone of impunity for their misconduct that no other citizen enjoys.I wouldn’t just be comfortable bringing this case to a jury; I’d be eager to make my argument. But I’d also know that Trump’s legal team has its own defenses, and it’s far from certain that a judge or a jury will agree with the prosecution’s case. But democracies aren’t sustained without risk, and prosecuting Trump is a risk our nation needs to take.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

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      in Elections

      How Jack Smith Structured the Trump Election Indictment to Reduce Risks

      by

      The special counsel layered varied charges atop the same facts, while sidestepping a free-speech question by not charging incitement.In accusing former President Donald J. Trump of conspiring to subvert American democracy, the special counsel, Jack Smith, charged the same story three different ways. The charges are novel applications of criminal laws to unprecedented circumstances, heightening legal risks, but Mr. Smith’s tactic gives him multiple paths in obtaining and upholding a guilty verdict.“Especially in a case like this, you want to have multiple charges that are applicable or provable with the same evidence, so that if on appeal you lose one, you still have the conviction,” said Julie O’Sullivan, a Georgetown University law professor and former federal prosecutor.That structure in the indictment is only one of several strategic choices by Mr. Smith — including what facts and potential charges he chose to include or omit — that may foreshadow and shape how an eventual trial of Mr. Trump will play out.The four charges rely on three criminal statutes: a count of conspiring to defraud the government, another of conspiring to disenfranchise voters, and two counts related to corruptly obstructing a congressional proceeding. Applying each to Mr. Trump’s actions raises various complexities, according to a range of criminal law experts.At the same time, the indictment hints at how Mr. Smith is trying to sidestep legal pitfalls and potential defenses. He began with an unusual preamble that reads like an opening statement at trial, acknowledging that Mr. Trump had a right to challenge the election results in court and even to lie about them, but drawing a distinction with the defendant’s pursuit of “unlawful means of discounting legitimate votes and subverting the election results.”While the indictment is sprawling in laying out a case against Mr. Trump, it brings a selective lens on the multifaceted efforts by the former president and his associates to overturn the 2020 election.“The strength of the indictment is that it is very narrowly written,” said Ronald S. Sullivan Jr., a Harvard Law School professor and former public defender. “The government is not attempting to prove too much, but rather it went for low-hanging fruit.”For one, Mr. Smith said little about the violent events of Jan. 6, leaving out vast amounts of evidence in the report by a House committee that separately investigated the matter. He focused more on a brazen plan to recruit false slates of electors from swing states and a pressure campaign on Vice President Mike Pence to block the congressional certification of Joseph R. Biden Jr.’s victory.That choice dovetails with Mr. Smith’s decision not to charge Mr. Trump with inciting an insurrection or seditious conspiracy — potential charges the House committee recommended. By eschewing them, he avoided having the case focus on the inflammatory but occasionally ambiguous remarks Mr. Trump made to his supporters as they morphed into a mob, avoiding tough First Amendment objections that defense lawyers could raise.For another, while Mr. Smith described six of Mr. Trump’s associates as co-conspirators, none were charged. It remains unclear whether some of them will eventually be indicted if they do not cooperate, or whether he intends to target only Mr. Trump so the case will move faster.Mr. Smith chose to say very little about the violent events of Jan. 6 and instead focused on the scheme to recruit slates of fake electors and the pressure Mr. Trump brought upon Vice President Pence.Jason Andrew for The New York TimesAmong the charges Mr. Smith did bring against Mr. Trump, corrupt obstruction of an official proceeding is the most familiar in how it applies to the aftermath of the 2020 election. Already, hundreds of ordinary Jan. 6 rioters have been charged with it.To date, most judges in Jan. 6 cases, at the district court and appeals court level, have upheld the use of the statute. But a few Trump-appointed judges have favored a more narrow interpretation, like limiting the law to situations in which people destroyed evidence or sought a benefit more concrete than having their preferred candidate win an election.Mr. Trump, of course, would have personally benefited from staying in office, making that charge stronger against him than against the rioters. Still, a possible risk is if the Supreme Court soon takes up one of the rioter cases and then narrows the scope of the law in a way that would affect the case against Mr. Trump.Proving IntentSome commentators have argued in recent days that prosecutors must persuade the jury that Mr. Trump knew his voter fraud claims were false to prove corrupt intent. But that is oversimplified, several experts said.To be sure, experts broadly agree that Mr. Smith will have an easier time winning a conviction if jurors are persuaded that Mr. Trump knew he was lying about everything. To that end, the indictment details how he “was notified repeatedly that his claims were untrue” and “deliberately disregarded the truth.”“What you see in Trump — a guy who seems to inhabit his own fictional universe — is something you see in other fraud defendants,” said David Alan Sklansky, a Stanford University law professor. “It’s a common challenge in a fraud case to prove that at some level the defendant knew what he was telling people wasn’t true. The way you prove it is, in part, by showing that lots of people made clear to the defendant that what he was saying was baseless.”Moreover, the indictment emphasizes several episodes in which Mr. Trump had firsthand knowledge that his statements were false. Prosecutors can use those instances of demonstrably knowing lies to urge jurors to infer that Mr. Trump knew he was lying about everything else, too.The indictment, for example, recounts a taped call on Jan. 2 with Georgia’s secretary of state, Brad Raffensperger, in which Mr. Trump shared a series of conspiracy theories that he systematically debunked in detail. But on Twitter the next day, Mr. Trump “falsely claimed that the Georgia secretary of state had not addressed” the allegations.And on Jan. 5, Mr. Pence told Mr. Trump that he had no lawful authority to alter or delay the counting of Mr. Biden’s electoral votes, but “hours later” Mr. Trump issued a statement through his campaign saying the opposite: “The vice president and I are in total agreement that the vice president has the power to act.”Vice President Pence appears during House committee hearings investigating Jan. 6. The indictment suggests Mr. Trump knew he was lying about what Mr. Pence had told him on January 5.Doug Mills/The New York TimesIn any case, several rioters have already argued that they did not have “corrupt intent” because they sincerely believed the election had been stolen. That has not worked: Judges have said that corrupt intent can be shown by engaging in other unlawful actions like trespassing, assaulting the police and destroying property.“Belief that your actions are serving a greater good does not negate consciousness of wrongdoing,” Judge Royce C. Lamberth wrote last month.Mr. Trump, of course, did not rampage through the Capitol. But the indictment accuses him of committing other crimes — the fraud and voter disenfranchisement conspiracies — based on wrongful conduct. It cites Mr. Trump’s bid to use fake electors in violation of the Electoral Count Act and his solicitation of fraud at the Justice Department and in Georgia, where he pressured Mr. Raffensperger to help him “find” 11,780 votes, enough to overcome Mr. Biden’s margin of victory.“Whether he thinks he won or lost is relevant but not determinative,” said Paul Rosenzweig, a former prosecutor who worked on the independent counsel investigation into President Bill Clinton. “Trump could try to achieve vindicating his beliefs legally. The conspiracy is tied to the illegal means. So he has to say that he thought ‘finding’ 11,000 votes was legal, or that fake electors were legal. That is much harder to say with a straight face.”Proving Mr. Trump’s intent will also be key to the charges of defrauding the government and disenfranchising voters. But it may be easier because those laws do not have the heightened standard of “corrupt” intent as the obstruction statute does.Court rulings interpreting the statute that criminalizes defrauding the United States, for example, have established that evidence of deception or dishonesty is sufficient. In a 1924 Supreme Court ruling, Chief Justice William H. Taft wrote that it covers interference with a government function “by deceit, craft or trickery, or at least by means that are dishonest.” A 1989 appeals courts ruling said the dishonest actions need not be crimes in and of themselves.This factor may help explain the indictment’s emphasis on the fake electors schemes in one state after another, a repetitive narrative that risks dullness: It would be hard to credibly argue that Mr. Trump and his co-conspirators thought the fake slates they submitted were real, and the indictment accuses them of other forms of trickery as well.The opening of the Michigan Electoral College session at the State Capitol in 2020. The indictment emphasizes Mr. Trump’s involvement in fake electors schemes in several swing states.Pool photo by Carlos Osorio“Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the defendant succeeded in outcome-determinative lawsuits within their state, which the defendant never did,” it said.A Novel ChargeThe inclusion of the charge involving a conspiracy to disenfranchise voters was a surprising development in Mr. Smith’s emerging strategy. Unlike the other charges, it had not been a major part of the public discussion of the investigation — for example, it was not among the charges recommended by the House Jan. 6 committee.Congress enacted the law after the Civil War to provide a tool for federal prosecutors to go after Southern white people, including Ku Klux Klan members, who used terrorism to prevent formerly enslaved Black people from voting. But in the 20th century, the Supreme Court upheld a broadened use of the law to address election-fraud conspiracies. The idea is that any conspiracy to engineer dishonest election results victimizes all voters in an election.“It was a good move to charge that statute, partly because that is really what this case really is about — depriving the people of the right to choose their president,” said Robert S. Litt, a former federal prosecutor and a top intelligence lawyer in the Obama administration.That statute has mostly been used to address misconduct leading up to and during election, like bribing voters or stuffing ballot boxes, rather than misconduct after an election. Still, in 1933, an appeals court upheld its use in a case involving people who reported false totals from a voter tabulation machine.It has never been used before in a conspiracy to use fake slates of Electoral College voters from multiple states to keep legitimate electors from being counted and thereby subvert the results of a presidential election — a situation that itself was unprecedented.Mr. Trump’s lawyers have signaled they will argue that he had a First Amendment right to say whatever he wanted. Indeed, the indictment acknowledged that it was not illegal in and of itself for Mr. Trump to lie.But in portraying Mr. Trump’s falsehoods as “integral to his criminal plans,” Mr. Smith suggested he would frame those public statements as contributing to unlawful actions and as evidence they were undertaken with bad intentions, not as crimes in and of themselves.Mr. Trump at Reagan National Airport Thursday following his court appearance. Mr. Trump’s legal team has signaled they will argue that he had a First Amendment right to say whatever he wanted.Doug Mills/The New York TimesA related defense Mr. Trump may raise is the issue of “advice of counsel.” If a defendant relied in good faith on a lawyer who incorrectly informed him that doing something would be legal, a jury may decide he lacked criminal intent. But there are limits. Among them, the defendant must have told the lawyer all the relevant facts and the theory must be “reasonable.”The indictment discusses how even though White House lawyers told Mr. Trump that Mr. Pence had no lawful authority to overturn Mr. Biden’s victory, an outside lawyer — John Eastman, described in the indictment as Co-Conspirator 2 and who separately faces disbarment proceedings — advised him that Mr. Pence could.Several legal specialists agreed that Mr. Trump has an advice-of-counsel argument to make. But Samuel W. Buell, a Duke University law professor, said Mr. Smith was likely to try to rebut it by pointing to the repeated instances in which Mr. Trump’s White House legal advisers told him that Mr. Eastman was wrong.“You have to have a genuine good-faith belief that the legal advice is legitimate and valid, not just ‘I’m going to keep running through as many lawyers as I can until one tells me something I want to hear, no matter how crazy and implausible it is,’” Mr. Buell said. More