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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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      Trump Georgia Election Inquiry: Grand Jury Likely to Hear Case Next Week

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      The district attorney in Atlanta is expected to take the findings from an election interference investigation to a grand jury, which could issue indictments.The fourth criminal case involving Donald J. Trump is likely to come to a head next week, with the district attorney in Atlanta expected to take the findings from her election interference investigation to a grand jury.The Georgia investigation may be the most expansive legal challenge yet to the efforts that Mr. Trump and his advisers undertook to keep him in power after he lost the 2020 election. Nearly 20 people are known to have been told that they could face charges as a result of the investigation, which Fani T. Willis, the district attorney in Fulton County, Ga., has pursued for two and a half years.Ms. Willis has signaled that she would seek indictments from a grand jury in the first half of August. In a letter to local officials in May, she laid out plans for most of her staff to work remotely during the first three weeks of August amid heightened security concerns. Security barriers were recently erected in front of the downtown Atlanta courthouse, and at lunchtime on Tuesday, 16 law enforcement vehicles were parked around the perimeter.On Tuesday afternoon, two witnesses who received subpoenas to appear before the Fulton County grand jury said in interviews that they had not received notices instructing them to testify within the next 48 hours, a sign that the case will not get to the jury until next week.Earlier this month, Mr. Trump was indicted in a federal case brought by the special counsel Jack Smith, in an investigation also related to election interference that listed a number of unindicted co-conspirators. The Georgia inquiry, elements of which overlap with the federal case, involves not just the former president, but an array of his aides and advisers at the time of the 2020 election, several of whom are expected to face charges.If Mr. Trump were to be convicted in a federal prosecution, he could theoretically pardon himself if he were re-elected president. But presidents do not hold such sway in state matters. Moreover, Georgia law makes pardons possible only five years after the completion of a sentence. Getting a sentence commuted requires the approval of a state panel.Mr. Trump’s lawyers have described an indictment in Georgia as a foregone conclusion in recent legal filings, and the forewoman of a special grand jury that heard evidence for several months last year strongly hinted afterward that the group, which served in an advisory capacity, had recommended Mr. Trump for indictment.Two grand juries have been hearing cases at the Fulton County Courthouse during the current Superior Court term, which began on July 11 and runs through Sept. 1. Twelve of 23 jurors need to agree that there is probable cause to hand down criminal charges after hearing evidence in a case.“The work is accomplished,” Ms. Willis recently told a local TV station. “We’ve been working for two and a half years. We’re ready to go.”“The work is accomplished,” Fani T. Willis, the district attorney in Fulton County, Ga., recently told a local TV station. “We’ve been working for two and a half years. We’re ready to go.”Audra Melton for The New York TimesHer office began investigating in February 2021 whether the former president and his allies illegally meddled in the 2020 election in Georgia, which Mr. Trump narrowly lost to President Biden.The inquiry focused on five things that happened in Georgia in the weeks after the election. They include calls that Mr. Trump made to pressure local officials, including a Jan. 2, 2021, call to Georgia’s secretary of state, Brad Raffensperger, during which Mr. Trump said he wanted to “find” nearly 12,000 votes, or enough to reverse his loss.Ms. Willis’s office also scrutinized a plan by Trump allies to create a slate of bogus electors for Mr. Trump in Georgia, even though Mr. Biden’s victory had been certified several times by the state’s Republican leadership. The office also investigated harassment of local election workers by Trump supporters, as well as lies about ballot fraud that were advanced by Rudolph W. Giuliani, Mr. Trump’s personal lawyer at the time, and other allies during legislative hearings after the election.At times the investigation stretched beyond Fulton County, including to rural Coffee County, about 200 miles southeast of Atlanta, where Trump allies and contractors working on their behalf breached the election system in the first week of 2021.Ms. Willis has said that by bringing charges under Georgia’s version of the Racketeer Influenced and Corrupt Organizations Act, her inquiry could cover a wide range of issues. Broadly speaking, so-called RICO laws require prosecutors to prove that a group of people conspired to take part in organized criminal activity.With RICO indictments, Ms. Willis said in an interview last year, “there are sometimes acts that occurred outside of the jurisdiction that are overt acts that we can use if they are evidence of the greater scheme.”The special grand jury heard evidence in the case for roughly seven months and recommended more than a dozen people for indictments, its forewoman has said. The Trump aides and allies whose conduct has been scrutinized in the inquiry include Mr. Giuliani, who was told last year that he was a target who could face charges. A number of other lawyers who worked to keep Mr. Trump in power have also been under scrutiny in the investigation, including John Eastman, Sidney Powell, Jenna Ellis and Kenneth Chesebro.Mark Meadows, the former White House chief of staff, was ordered to testify before the special grand jury last year. He traveled to Georgia after the election and became personally involved in the efforts to keep Mr. Trump in office despite his loss.Ms. Willis’s office also sought the testimony of Jeffrey Clark, a former high-ranking official at the Justice Department, but was blocked by the department. Mr. Clark sought to intervene in Georgia on Mr. Trump’s behalf after the 2020 election, over the strong objections of more senior officials at the department.More than half of the 16 Republicans who were bogus Trump electors in Georgia are cooperating with Ms. Willis’s office, but others have been told they could face charges, including David Shafer, the former leader of the state Republican Party.Mr. Trump’s lawyers have called the Atlanta inquiry a “clown show” and have filed numerous court motions seeking to disqualify the district attorney and derail the investigation. They argued that the special grand jury proceedings were unconstitutional, and that Ms. Willis has made prejudicial public statements.But Georgia judges have shown no inclination to act before any charges are brought. Both the presiding Fulton Superior Court judge, Robert C.I. McBurney, and the Georgia Supreme Court have rejected motions from the Trump team in recent weeks.Two witnesses who have been subpoenaed to appear before Fulton grand jurors currently hearing cases — George Chidi, an independent journalist, and Jen Jordan, a former state senator — said Tuesday afternoon that they had not received 48-hour notices to appear this week. Mr. Chidi was one of a handful of reporters who discovered a December 2020 meeting of bogus Trump electors, and Ms. Jordan, a Democrat, attended a legislative hearing in which Mr. Giuliani and other Trump allies advanced false claims of election fraud.This has been a busy year for Mr. Trump’s lawyers. In April, he was indicted in state court in Manhattan on 34 felony counts related to his role in what prosecutors described as a hush-money scheme, covering up a potential sex scandal to clear his path to the presidency in 2016.In June, he was indicted in Miami on federal criminal charges related to his handling of classified documents and whether he obstructed the government’s efforts to recover them after he left office.Christian Boone contributed reporting. More

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      How Jack Smith Structured the Trump Election Indictment to Reduce Risks

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      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

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      Man Who Threatened Arizona Election Officials Gets More Than 3 Years in Prison

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      The man called for a mass shooting of poll workers and also threatened the families of two county officials, saying that someone needed to get “these people and their children.”A man who called for a “mass shooting of poll workers” and threatened two Arizona county officials and their families over the 2022 election was sentenced on Thursday to three and a half years in federal prison, prosecutors said.The man, Frederick Francis Goltz, 52, pleaded guilty in April to two counts of interstate threatening communications in connection with his threats to two Republican Maricopa County officials in Arizona, the authorities said: Stephen Richer, the county recorder, and Tom Liddy, the county attorney’s civil division chief.Mr. Goltz, who is a Canadian citizen and lived in Lubbock, Texas, believed in 2022 that rampant voter fraud was occurring in Arizona, prosecutors said, so he resorted to online threats, saying in a post on a right-wing forum site that referred to Maricopa County officials: “Someone needs to get these people AND their children. The children are the most important message to send.”His threats continued for weeks. He wrote in an online forum that he was “willing to take lives” in order to fend off a “tyrannical government,” the U.S. Attorney’s Office for the Northern District of Texas said in a statement.Mr. Richer said in a statement read aloud by a prosecutor on Thursday that while he had been the person directly threatened in the case, “the impact of such threats is felt by a much larger community: the thousands of committed election workers who operate our democratic processes.”Mr. Liddy testified during the sentencing hearing that his wife and his four children were assigned round-the-clock protection and given body armor in response to Mr. Goltz’s threats.Mr. Goltz’s lawyer, Michael L. King, did not immediately respond to calls seeking comment on Friday. The two election officials who were targeted also did not immediately respond to requests for comment.The case has highlighted how right-wing skepticism of election results has often fueled threats against election officials, particularly in battleground states. Such animosity has prompted several beleaguered officials across the country to resign from their election posts.The case also underscores the dangerous effect that online disinformation has had, as aggrieved social media posts call for threatening actions with real-world consequences.In November 2022, shortly after the midterms, Mr. Goltz posted threats to poll election workers on Patriots.win under the name “FreeSpeechMaster,” according to a criminal complaint. That month, he also posted Mr. Liddy’s home address, telephone number and commented that “it would be a shame if someone got to” his children, the complaint states.On Nov. 23, 2022, Mr. Goltz noted in a post that Mr. Richer had a wife but wasn’t sure if he had children, the complaint states.“Kids are off limits,” one user replied.“No,” Mr. Goltz replied, according to court documents. “NOTHING is off limits.”He then said that he wished someone would “send a message” to Arizona by going after Mr. Richer’s children.Later that year, on Dec. 1, Mr. Goltz wrote he was “willing to take lives” and that the children were “not off limits, either,” the complaint states.The F.B.I. shared the posts with Mr. Liddy, who told the agency that he felt “afraid for himself and his family,” prosecutors said.Dr. Yotam Ophir, a professor of communication at the University at Buffalo who researches misinformation, said by phone on Friday that former President Donald J. Trump is responsible for almost all election fraud misinformation, which he has amplified for years, particularly after losing the 2020 presidential election.“In the past, we had a hope that inciteful, violent, hate-driven misinformation online would stay online,” Dr. Ophir said. “But I think in recent years, unfortunately, it’s becoming clear that what starts in the dark corners of the internet, it doesn’t stay there.”He said it appeared that the legal system and the intelligence community were beginning to realize “the massive threat that online digital environments can have toward democracy.”The man who attacked former House Speaker Nancy Pelosi’s husband last year appeared to have a copious online presence as he shared angry and paranoid postings on a blog. Nearly three-quarters of people across 19 countries believe that the spread of false information online is a “major threat,” according to a survey released by the Pew Research Center last year.“In recent years, it became clearer that people who are being radicalized online, especially on the far-right, pose a real threat,” Dr. Ophir said. “And again, it doesn’t end online.” More

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

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      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

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

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      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

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      Matt DePerno, Trump Meddler in Michigan, Is Charged in Election Breach

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      A key figure in a multistate effort to overturn the 2020 election, Mr. DePerno lost his race for Michigan attorney general in 2022. He later finished second to lead the state’s Republican Party.Matthew DePerno, a key orchestrator of efforts to help former President Donald J. Trump try to overturn the 2020 election in Michigan and an unsuccessful candidate for state attorney general last year, was arraigned on four felony charges on Tuesday, according to documents released by D.J. Hilson, the special prosecutor handling the investigation.The charges against Mr. DePerno, which include undue possession of a voting machine and a conspiracy to gain unauthorized access to a computer or computer system, come after a nearly yearlong investigation in one of the battleground states that cemented the election of Joseph R. Biden Jr. as president.Former State Representative Daire Rendon was also charged with two crimes, including a conspiracy to illegally obtain a voting machine and false pretenses.Both Mr. DePerno and Ms. Rendon were arraigned remotely on Tuesday before Chief Judge Jeffery Matis, according to Richard Lynch, the court administrator for Oakland County’s Sixth Circuit, and remained free on bond.The charges were first reported by The Detroit News.Mr. DePerno denied any wrongdoing and said that his efforts “uncovered significant security flaws” in a statement from his lawyer, Paul Stablein.“He maintains his innocence and firmly believes that these charges are not based upon any actual truth and are motivated primarily by politics rather than evidence,” Mr. Stablein said.The criminal inquiry in Michigan has largely been overshadowed by developments in Georgia, where a grand jury is weighing charges against Mr. Trump for trying to subvert the election, but both are part of the ongoing reckoning over the conspiracy theories about election machines promoted by Mr. Trump and his allies.The efforts to legitimize the falsehoods and conspiracy theories promoted widely by Mr. Trump and his allies continued long after the Jan. 6, 2021, attack on the Capitol and after Mr. Biden took office. In Arizona, such efforts included the discredited election audit of Maricopa County led by Republicans in the state legislature.In a statement, Mr. Hilson said, “Although our office made no recommendations to the grand jury as to whether an indictment should be issued or not, we support the grand jury’s decision and we will prosecute each of the cases as they have directed in the sole interests of justice.”Dana Nessel, Michigan’s attorney general and a Democrat who went on to defeat Mr. DePerno in the November election, has not been involved in the investigation since the appointment of a special prosecutor in August last year. In a statement on Tuesday, Ms. Nessel said that the allegations “caused undeniable harm to our democracy” and issued a warning for the future.“The 2024 presidential election will soon be upon us. The lies espoused by attorneys involved in this matter, and those who worked in concert with them across the nation, wreaked havoc and sowed distrust within our democratic institutions and processes,” Ms. Nessel said. “We hope for swift justice in the courts.”The charges stemmed from a bizarre plot hatched by a group of conservative activists in early 2021 to pick apart voting machines in at least three Michigan counties, in some cases taking them to hotels and Airbnb rentals as they hunted for evidence of election fraud.In the weeks after the 2020 election, he drew widespread attention and the admiration of Mr. Trump when he filed a lawsuit challenging the vote tallies in Antrim County, a rural area in Northern Michigan where a minor clerical error fueled conspiracy theories.He falsely claimed that voting machines there had been rigged, a premise that was rejected as “idiotic” by William P. Barr, an attorney general under Mr. Trump, and “demonstrably false” by Republicans in the Michigan Senate.Mr. Hilson, the prosecutor in Muskegon County appointed as special prosecutor, had initially delayed bringing charges, asking a state judge to determine whether it was against state law to take possession of a voting machine without the secretary of state’s permission or a court order. A judge determined last month that doing so was against the law, clearing the way for charges.Democrats swept the governor’s race and other statewide contests last fall, in addition to flipping the full Legislature for the first time in decades. Mr. DePerno, who was endorsed by Mr. Trump, lost the attorney general’s race by eight percentage points.This year, Mr. DePerno had been a front-runner to lead the Michigan Republican Party after its disappointing showing in last year’s midterm election, but he finished second to another election-denier: Kristina Karamo.In his campaign to lead the G.O.P. in Michigan, Mr. DePerno had vowed to pack the party’s leadership ranks with Trump loyalists, close primaries to just Republicans and ratchet up the distribution of absentee ballot applications to party members — despite what he said was lingering opposition to voting by mail within the party’s ranks.His candidacy was supported by Mike Lindell, the MyPillow chief executive who has spread conspiracy theories about election fraud and appeared at a fund-raising reception for Mr. DePerno in Lansing on the night before the chairmanship vote.Mr. DePerno lost to Ms. Karamo after three rounds of balloting at the state party convention, a process that was slowed for several hours by the use of paper ballots and hand counting.Danny Hakim More

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      Potential Trump Jan. 6 Charges Include a Civil Rights Law Violation

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      A target letter sent by the special counsel investigating Donald Trump’s efforts to reverse his election loss cited three statutes that could be the basis for a prosecution.Federal prosecutors have introduced a new twist in the Jan. 6 investigation by suggesting in a target letter that they could charge former President Donald J. Trump with violating a civil rights statute that dates back to the post-Civil War Reconstruction era, according to three people familiar with the matter.The letter to Mr. Trump from the special counsel, Jack Smith, referred to three criminal statutes as part of the grand jury investigation into Mr. Trump’s efforts to reverse his 2020 election loss, according to two people with knowledge of its contents. Two of the statutes were familiar from the criminal referral by the House Jan. 6 committee and months of discussion by legal experts: conspiracy to defraud the government and obstruction of an official proceeding.But the third criminal law cited in the letter was a surprise: Section 241 of Title 18 of the United States Code, which makes it a crime for people to “conspire to injure, oppress, threaten, or intimidate any person” in the “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”Congress enacted that statute after the Civil War to provide a tool for federal agents to go after Southern whites, including Ku Klux Klan members, who engaged in terrorism to prevent formerly enslaved African Americans from voting. But in the modern era, it has been used more broadly, including in cases of voting fraud conspiracies.A Justice Department spokesman declined to discuss the target letter and Mr. Smith’s theory for bringing the Section 241 statute into the Jan. 6 investigation. But the modern usage of the law raised the possibility that Mr. Trump, who baselessly declared the election he lost to have been rigged, could face prosecution on accusations of trying to rig the election himself.A series of 20th-century cases upheld application of the law in cases involving alleged tampering with ballot boxes by casting false votes or falsely tabulating votes after the election was over, even if no specific voter could be considered the victim.In a 1950 opinion by the Court of Appeals for the Sixth Circuit, for example, Judge Charles C. Simons wrote of applying Section 241 in a ballot box-stuffing case that the right to an honest count “is a right possessed by each voting elector, and to the extent that the importance of his vote is nullified, wholly or in part, he has been injured in the free exercise of a right or privilege secured to him by the laws and Constitution of the United States.”In a 1974 Supreme Court opinion upholding the use of Section 241 to charge West Virginians who cast fake votes on a voting machine, Justice Thurgood Marshall cited Judge Simons and added that every voter “has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes.”The line of 20th-century cases raised the prospect that Mr. Smith and his team could be weighing using that law to cover efforts by Mr. Trump and his associates to flip the outcome of states he lost. Those efforts included the recorded phone conversation in which Mr. Trump tried to bully Georgia’s secretary of state to “find” enough additional votes to overcome Mr. Biden’s win in that state and promoting a plan to use so-called fake electors — self-appointed slates of pro-Trump electors from states won by Mr. Biden — to help block or delay congressional certification of Mr. Trump’s defeat.“It seems like under 241 there’s at least a right to an honest counting of the votes,” said Norman Eisen, who worked for the House Judiciary Committee during Mr. Trump’s first impeachment. “Submitting an alternate electoral certificate to Congress (as opposed to casting false votes or counting wrong) is a novel scenario, but it seems like it would violate this right.”The prospect of charging Mr. Trump under the other two statutes cited in the target letter is less novel, if not without hurdles. Among other things, in its final report last year, the House committee that investigated the events that culminated in the Jan. 6 attack on the Capitol had recommended that the Justice Department charge the former president under both of them.One, Section 371 of Title 18, makes it a crime to conspire to defraud the United States. The other, Section 1512, includes a provision that makes it a crime to corruptly obstruct an official proceeding.A spokesman for Mr. Trump declined requests to clarify what was in the letter.Citing the statutes in the letter, which Mr. Trump has said he received on Sunday, does not necessarily mean that any charges brought by Mr. Smith would have to be based on them. But the letter’s contents provide a road map to investigators’ thinking.The conspiracy to defraud the United States statute, if used, raises the question of who Mr. Trump’s co-conspirators would be.Some of those who worked most closely with Mr. Trump in promoting the lie that Mr. Trump had been robbed of a victory by widespread fraud, including lawyers like Rudolph W. Giuliani and John Eastman, had not received target letters, their lawyers said on Tuesday.The corrupt obstruction of a proceeding charge has been used against hundreds of Jan. 6 rioters and has served as the Justice Department’s go-to count in describing the central event that day: the disruption of the Electoral College certification process that was taking place inside the Capitol during a joint session of Congress.The law was originally passed as part of the Sarbanes-Oxley Act, a measure meant to curb corporate malfeasance. Defense lawyers for several rioters have challenged its use against their client, saying it was meant to stop crimes like witness tampering or document destruction and had been unfairly stretched to include the chaos at the Capitol.But in April, a federal appeals court upheld the viability of applying that charge to participants in the Capitol attack. Still, unlike ordinary rioters, Mr. Trump did not physically participate in the storming of the Capitol, although he had summoned supporters to Washington that day and railed about the unwillingness of Vice President Mike Pence, who was presiding over the proceedings in Congress, to stop them.A second attempt to invalidate the obstruction count in the federal appeals court in Washington has focused specifically on a provision of the law dictating that defendants must act “corruptly” in committing the obstructive act.Defense lawyers have argued that this provision does not apply to many ordinary Jan. 6 rioters who did not act corruptly because they stood to gain nothing personally by entering the Capitol. It could, however, be applied more easily to Mr. Trump, who stood to gain an election victory by obstructing the certification process.William K. Rashbaum More