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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

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      Trump’s Conspirators Are Facing the Music, Finally

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      We’ve reached a turning point in the effort to ensure there are consequences for those who deliberately attempt to undermine our democracy: Michigan’s attorney general, Dana Nessel, charged 16 Republican leaders in her state on Tuesday for their role as fake electors working to overturn the results of the 2020 election. The charges, coming on the heels of news that the special counsel Jack Smith has informed Donald Trump that he’s a target of the Department of Justice’s investigation into the Capitol riot, mean we are witnessing a new and necessary phase in this quest for accountability, one in which the federal and state wheels of justice work to hold people accountable not only for the violence on Jan. 6, but also for what got us there: the alleged scheme to interfere with the transfer of power.The charges in Michigan will surely meet criticism on all sides. Some will say the case is not broad or bold enough, that Mr. Trump and the other alleged national ringleaders should have been charged as well. Others will say Ms. Nessel cast too wide a net, pulling in low-level party functionaries who did not know better. We think those critiques are misconceived. Ms. Nessel got it just right, prosecuting crimes firmly within her jurisdiction, while opening the way for federal authorities to net even bigger fish.Ms. Nessel brought the same eight counts against all 16 defendants. The offenses include conspiracy to commit forgery, since the defendants are accused of signing documents stating they were the qualified electors (they were not), and publishing forged documents by circulating these materials to federal and state authorities. On paper, the penalties for the offenses range from five to 14 years, but sentencing in this case would presumably be lower than that maximum.Until now there have been no charges centered on the fake electors plot. For that reason alone, Michigan’s action brings a sense of needed accountability for those who fanned the rioters’ passions leading up to Jan. 6 by spinning a false narrative about a stolen election.Michigan saw some of the most outrageous fake electoral certificates to emerge during the period leading up to the Capitol riot. Unlike the fake certificates in Pennsylvania and New Mexico, the Michigan documents did not include a disclaimer that they were to be used only in the case of litigation. What’s more, the documents contained more outright false statements than simply declaring that the signers were the lawful electors of the winning candidate.For example, they state that the electors “convened and organized in the State Capitol,” when, according to the attorney general, they were hidden away in the basement of the state Republican headquarters. (It seems likely that the fake electors included this lie because Michigan law requires presidential electors to meet in the Capitol — a requirement and legal problem that a Trump campaign legal adviser, Kenneth Chesebro, had flagged in his confidential memorandum setting out the scheme.)In proving these cases, establishing intent will be key. Here, there are several indicators that the defendants may have been aware of the illicit nature of their gathering. According to congressional testimony from the state Republican Party’s chairwoman at the time, Laura Cox, the group originally planned to meet inside the Capitol and hide overnight, so they could vote in the building the following day. Ms. Cox said she told a lawyer working with the Trump campaign and supposedly organizing the fake electors “in no uncertain terms that that was insane and inappropriate,” and “a very, very bad idea and potentially illegal.”As she put it, Ms. Cox was “very uncomfortable” with facilitating a meeting of the fake elector group, and said so at the time in accord with her lawyers’ opinion. Ms. Cox even urged the group to draft a significantly more measured document simply “stating that if perhaps something were to happen in the courts, they were willing and able to serve as electors from Michigan for Donald Trump.” Her advice was not followed.At the time the fake electors met to allegedly forge their documents, they should have been aware that state officials had certified the election results for Joe Biden — it was national and state news. By that point, there was no prospect of changing that outcome through either litigation or legislative action. On the day prosecutors say the fake electors met, two of the most powerful Republicans in the state acknowledged as much. Mike Shirkey, the majority leader in the State Senate, and Lee Chatfield, the House speaker, both issued statements declaring the presidential race over. Mr. Shirkey said that Michigan’s “Democratic slate of electors should be able to proceed with their duty” without the threat of harassment or violence.The fake electors were told they were not allowed to bring their phones into the meeting at the Republican headquarters that day, according to testimony one of them gave congressional investigators. They were instructed to maintain secrecy and not to share any details about what was occurring. That secrecy suggests that they knew what they were doing was wrong.Michigan’s former secretary of state, Terri Lynn Land, who had been designated a Trump elector, declined to participate in the proceedings, saying, according to Ms. Cox’s testimony, she was not comfortable doing so.With these facts, it would have been unthinkable for the state attorney general to choose not to prosecute the Michigan 16. Ms. Nessel’s office has regularly brought prosecutions, some of them against her fellow Democrats, centered on false documents in connection with elections. The case of the fake electors is far more egregious than most of those other cases: The defendants here were politically engaged individuals who should have been aware of the election results, as well as the flat rejection by the courts and Michigan Legislature of the Trump campaign’s claims of voter fraud.To be sure, some critics of the case may still think that the Michigan attorney general should have gone after Mr. Trump and his top lieutenants, who helped organize the false electors. But prosecutors have a responsibility first to pursue those individuals within their jurisdiction. By focusing solely on the figures who undertook their acts in Michigan, Ms. Nessel is wisely insulating her case against charges that she overreached, exceeding her jurisdiction.Of course, broader prosecutions may still be justified. Reporting indicates that the district attorney for Fulton County, Ga., Fani Willis, may be considering a different kind of wide-ranging case, involving state RICO crimes. Unlike the Michigan prosecution, her case may focus on Mr. Trump’s direct efforts to pressure state election officials — efforts that were caught on tape — and Rudy Giuliani’s attempt to provide false statements of election fraud to state officials.If broad-based indictments ultimately emerge out of Georgia, and are supported by the facts and appropriate law, then we would welcome it. That is part of the genius of American democracy: The states, which are responsible for running our elections, are laboratories of both democracy and of accountability.Ms. Nessel’s case also leaves a clear lane for Mr. Smith, the special counsel. She has avoided charging high-level national individuals whom Mr. Smith is apparently investigating. If anything, her case provides greater foundation for Mr. Smith to act, and he now seems to be following through. If Ms. Nessel can move against these individuals in Michigan, Mr. Smith can and should do the same against the ringleaders. Together, they can hold both the foot soldiers and their organizers accountable for their actions leading up to the Capitol riot.Norman Eisen, a senior fellow at the Brookings Institution, was special counsel to the House Judiciary Committee for the first impeachment and trial of Donald Trump. Ryan Goodman, a law professor at New York University, is a co-editor in chief of the Just Security website.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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      Target Letter to Trump Raises Possibility of Obstruction and Fraud Charges

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      In the two and a half years since a mob laid siege to the Capitol in an effort to prevent Congress from certifying Joseph R. Biden Jr.’s electoral victory, a wealth of evidence has emerged about Donald J. Trump’s bid to stay in power after the 2020 election.Mr. Trump and his allies peddled spurious claims of voter fraud, pressured officials in states he narrowly lost and recruited false slates of electors in those states. He urged Vice President Mike Pence to delay certification of Mr. Biden’s win. And he called on a huge crowd of his supporters to march on the Capitol and “fight like hell.”Now, Mr. Trump appears almost certain to face criminal charges for some of his efforts to remain in office. On Tuesday, he disclosed on social media that federal prosecutors had sent him a so-called target letter, suggesting that he could soon be indicted in the investigation into the events that culminated in the riot.Mr. Trump did not say what criminal charges, if any, the special counsel, Jack Smith, had specified in issuing the letter.But since the Capitol attack — in part because of revelations by a House committee investigation and news reports — many legal specialists and commentators have converged on several charges that are particularly likely, especially obstruction of an official proceeding and conspiracy to defraud the government.A person briefed on the matter said the target letter cited three statutes that could be applied in a prosecution of Mr. Trump by the special counsel, Jack Smith, including a potential charge of conspiracy to defraud the United States.Norman Eisen, who worked for the House Judiciary Committee during Mr. Trump’s first impeachment and contributed to a prosecution memo modeling potential Jan. 6-related charges, said that the target letter suggested the special counsel “has more than enough evidence” to bring a case against the former president.“By leading the effort to procure fraudulent electoral certificates across the nation, Trump helmed a conspiracy to defraud the U.S.,” Mr. Eisen said. “And by using those false documents to press Mike Pence to disrupt the Jan. 6 meeting of Congress, Trump attempted to obstruct an official proceeding.”There have also been signs that prosecutors have explored potential charges involving wire or mail fraud related to Mr. Trump’s fund-raising efforts in the name of overturning the election results.Any charges in the District of Columbia — where federal grand juries have been hearing evidence — would raise additional legal peril for Mr. Trump. Already, the Justice Department has won guilty pleas or convictions in hundreds of cases related to the riot, suggesting that a pool of jurors may be less receptive toward him than in Palm Beach County, Fla., where he faces charges over his hoarding of sensitive government documents at his Mar-a-Lago estate.These are some of the charges Mr. Trump could face in the Jan. 6 case.Corruptly Obstructing an Official ProceedingBoth the House committee that scrutinized Jan. 6 and a federal judge in California who intervened in its inquiry have said that there is evidence that Mr. Trump tried to corruptly obstruct Congress’s session to certify Mr. Biden’s Electoral College victory. Under Section 1512(c) of Title 18 of the United States Code, such a crime would be punishable by up to 20 years in prison.Prosecutors have already used that law to charge hundreds of ordinary defendants in Jan. 6 cases, and in April, a federal appeals court upheld the viability of applying that charge to the Capitol attack. Still, unlike ordinary rioters, Mr. Trump did not physically participate in the storming of the Capitol.The House committee investigating the Capitol riot at a hearing in December.Jason Andrew for The New York TimesIn issuing criminal referrals as it ended its investigation, the Jan. 6 committee argued that Mr. Trump should be charged under the statute based on two sets of actions. By summoning supporters to Washington and stoking them to march on the Capitol, lawmakers argued, Mr. Trump had violated that law. Mr. Trump’s lawyers would likely raise doubts over whether he intended for his supporters to riot in part because he also told them to protest “peacefully.”The committee also cited Mr. Trump’s participation in the fake electors scheme as a reason to issue charges, pointing to his effort to strong-arm Mr. Pence to cite the existence of slates of electors pledged to Mr. Trump in seven states that Mr. Biden had actually won as a basis to delay certifying the election. The panel stressed how Mr. Trump had been told that there was no truth to his claims of a stolen election, which it said showed his intentions were corrupt.Conspiring to Defraud the Government and to Make False StatementsBoth the federal judge in California and the Jan. 6 committee also said there was evidence that Mr. Trump violated Section 371 of Title 18, which makes it a crime, punishable by up to five years in prison, to conspire with another person to defraud the government.The basis for such a charge would be similar: Mr. Trump’s interactions with various lawyers and aides in his effort to block the certification of Mr. Biden’s electoral victory, even though Mr. Trump was repeatedly told that his allegations of widespread voter fraud were baseless.In his ruling last year in a civil lawsuit over whether the Jan. 6 committee could obtain the emails of John Eastman, a legal adviser to Mr. Trump in his fight to overturn the election results, Judge David O. Carter ruled that it was more likely than not that the communications involved crimes, so qualified for an exception to attorney-client privilege.“The illegality of the plan was obvious,” he wrote. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the vice president to single-handedly determine the results of the 2020 election.”A conspiracy to submit false electors to Congress could also implicate Section 1001, which makes false statements a crime punishable by up to five years in prison. In the documents case, Mr. Trump is charged under this statute, accused of having caused his lawyer to lie to the Justice Department.Wire and Mail FraudA constellation of other potential crimes has also surrounded the Jan. 6 investigation. One is wire fraud. Section 1343 of Title 18 makes it a crime, punishable by 20 years in prison, to cause money to be transferred by wire across state lines as part of a scheme to obtain money by means of false or fraudulent representations. A similar fraud statute, Section 1341, covers schemes that use the Postal Service.Subpoenas issued by Mr. Smith suggest that he has been scrutinizing Mr. Trump’s political action committee, Save America PAC. It raised as much as $250 million, telling donors the money was needed to fight election fraud even as Mr. Trump had been told repeatedly that there was no evidence to back up those claims.The House Jan. 6 committee had also suggested that Mr. Trump and his associates had defrauded his own supporters. It described how after the election, they appealed to donors as many as 25 times a day to help fight the results in court and contribute to a defense fund. But no such fund existed, and they used the money for other purposes, including spending more than $200,000 at Trump hotel properties.“Throughout the committee’s investigation, we found evidence that the Trump campaign and its surrogates misled donors as to where their funds would go and what they would be used for,” Representative Zoe Lofgren, Democrat of California, said during one hearing. “So not only was there the big lie. There was the big rip-off.”The Jan. 6 committee and some legal commentators have also suggested Mr. Trump could be charged under Section 2383 of Title 18, which makes it a crime to incite, assist, “aid or comfort” an insurrection against the authority and laws of the federal government. That offense, however, is rarely charged and has not been leveled against any Jan. 6 defendant to date.In its final report, the committee singled out five of Mr. Trump’s other allies — Mark Meadows, his final chief of staff; and the lawyers Rudolph W. Giuliani, Mr. Eastman, Jeffrey Clark and Kenneth Chesebro — as potential co-conspirators with Mr. Trump in actions the committee said warranted Justice Department investigation.Luke Broadwater More

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      Trump Seeks Court Order to Throw Out Election Investigation in Georgia

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      Lawyers for the former president asked the state’s highest court to throw out the work of a special grand jury that investigated 2020 election interference and recommended indictments.In his latest legal maneuver, Donald J. Trump sought a court order on Friday that would throw out the work of an Atlanta special grand jury and disqualify Fani T. Willis, the prosecutor leading an investigation into election interference in Georgia.A decision on indictments looms in the investigation, which has been in progress for more than two years. Ms. Willis, the district attorney of Fulton County, has signaled that the decision will come in the first half of August; she recently asked judges in a downtown Atlanta courthouse not to schedule trials for part of that time as she prepares to bring charges.Mr. Trump’s lawyers made their request in a filing to Georgia’s Supreme Court. They want the court to throw out the evidence gathered by the special grand jury.Though the Georgia Supreme Court is predominantly Republican, the Trump legal team acknowledged in its filing that its latest stratagem was a long shot, conceding that it had identified “no case in 40 years” where the court had intervened in the way it seeks. “Then again, never has there been a case like this one,” it added.The investigation has examined whether the former president and his allies illegally interfered in the 2020 election in Georgia, where Mr. Trump lost narrowly to President Biden. The special grand jury heard evidence for roughly seven months and recommended indictments of more than a dozen people; its forewoman strongly hinted in an interview with The New York Times in February that Mr. Trump was among them. To bring any charges, Ms. Willis must now seek indictments from a regular grand jury.The Trump team’s filing raises a number of legal concerns, both about Georgia law relating to special grand juries and about how a special grand jury was used in this inquiry.Mr. Trump’s local legal team includes the lawyers Drew Findling, Marissa Goldberg and Jennifer Little. Their filing takes for granted that their client will be charged, saying that Ms. Willis “now seeks an indictment, the basis for which would be evidence unlawfully obtained during the special purpose grand jury’s proceedings.”The district attorney’s office had no immediate comment on the latest filing.Intervening in a potential criminal case before an indictment is even filed is complicated. Mr. Trump’s lawyers have already sought to scuttle the investigation with a motion, filed in March, to quash much of the collected evidence and take Ms. Willis off the investigation. To their frustration, the Superior Court judge handling the case, Robert C.I. McBurney, has yet to rule on the motion.“Stranded between the Supervising Judge’s protected passivity and the District Attorney’s looming indictment, Petitioner has no meaningful option other than to seek this Court’s intervention,” the lawyers wrote in their filing on Friday to the State Supreme Court.“Nothing about these processes have been normal or reasonable,” they wrote, adding that “the all-but-unavoidable conclusion is that the anomalies” are “because Petitioner is President Donald J. Trump.” More

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      in Elections

      Bolsonaro ha sido inhabilitado en Brasil. Trump busca la presidencia en EE. UU.

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      Aunque el comportamiento de ambos expresidentes fue muy similar, las consecuencias políticas que enfrentan han sido drásticamente diferentes.El presidente de extrema derecha, que no era el favorito en las encuestas, alertó sobre un fraude electoral a pesar de no tener ninguna prueba. Tras perder, afirmó que las elecciones estaban amañadas. Miles de sus seguidores —envueltos en banderas nacionales y engañados por teorías de la conspiración— procedieron a asaltar el Congreso, buscando anular los resultados.Ese escenario describe las elecciones presidenciales más recientes en las democracias más grandes del hemisferio occidental: Estados Unidos y Brasil.Pero si bien el comportamiento de los dos expresidentes —Donald Trump y Jair Bolsonaro— fue muy similar, las consecuencias políticas han sido drásticamente diferentes.Si bien Trump enfrenta cargos federales y estatales que lo acusan de pagarle a una actriz de cine porno por su silencio y de manejar de manera indebida documentos clasificados, sigue siendo la figura más influyente de la derecha estadounidense. Más de dos años después de dejar la Casa Blanca, Trump parece estar destinado a convertirse en el candidato republicano a la presidencia, con una amplia ventaja en las encuestas.En Brasil, Bolsonaro ha enfrentado represalias más rápidas y feroces. También enfrenta numerosas investigaciones criminales. Las autoridades allanaron su casa y confiscaron su teléfono celular. Y el viernes, menos de seis meses después de que dejara el poder, el Tribunal Superior Electoral de Brasil votó para inhabilitar a Bolsonaro de optar a un cargo político durante lo que queda de la década.Las secuelas de un asalto en el complejo de oficinas del gobierno brasileño por parte de los partidarios de Bolsonaro en enero.Victor Moriyama para The New York TimesEl tribunal dictaminó que el expresidente abusó de su poder cuando hizo afirmaciones sin fundamento sobre la integridad de los sistemas de votación de Brasil en la televisión estatal. Su próxima oportunidad a la presidencia sería en las elecciones de 2030, en las que tendría 75 años.Trump, incluso si es hallado culpable en un caso antes de las elecciones del año que viene, no sería descalificado automáticamente de postularse a la presidencia.El contraste entre las consecuencias que enfrentan ambos hombres refleja las diferencias de las estructuras políticas y gubernamentales de los dos países. El sistema estadounidense ha dejado el destino de Trump en manos de los votantes y del proceso lento y metódico del sistema judicial. En Brasil, los tribunales han sido proactivos, rápidos y agresivos para eliminar cualquier cosa que consideren una amenaza para la joven democracia de la nación.Las elecciones estadounidenses están a cargo de los estados, con un mosaico de reglas en todo el país sobre quién es elegible para postularse y cómo. En muchos casos, uno de los pocos obstáculos para aparecer en una boleta es recolectar suficientes firmas de votantes elegibles.En Brasil, las elecciones están regidas por el Tribunal Superior Electoral, el cual, como parte de sus funciones, sopesa regularmente si los candidatos tienen derecho a postularse para un cargo.“El alcalde, el gobernador o el presidente tienden a abusar de su poder para ser reelectos. Por eso creamos la ley de inelegibilidad”, dijo Ricardo Lewandowski, juez jubilado del Supremo Tribunal Federal de Brasil y expresidente del Tribunal Superior Electoral.La ley brasileña establece que los políticos que abusen de sus cargos sean temporalmente inelegibles para cargos. Como resultado, el Tribunal Superior Electoral ha bloqueado rutinariamente la postulación de políticos, incluidos, junto con Bolsonaro, tres expresidentes.“Lo que nuestro sistema trata de hacer es proteger al votante”, dijo Lewandowski. “Quienes cometieron delitos contra el pueblo deben permanecer fuera del juego durante cierto periodo de tiempo hasta que se rehabiliten”.Según algunos analistas, esta estrategia ha puesto demasiado poder en manos de los siete jueces del Tribunal Superior Electoral, en lugar de que sean los votantes quienes decidan.“Es una diferencia estructural entre los dos países”, dijo Thomas Traumann, analista político y exsecretario Especial de Comunicación Social de una presidenta brasileña de izquierda. Los políticos en Brasil conocen las reglas, dijo, y el sistema ha ayudado a mantener alejados del poder a algunos políticos corruptos. “Por otro lado, estás impidiendo que la gente decida”, dijo.El sistema electoral centralizado de Brasil también impidió que Bolsonaro librara una batalla tan prolongada por los resultados de las elecciones como lo hizo Trump.En Estados Unidos, un conteo lento de votos retrasó una semana la proclamación del ganador y luego el proceso del Colegio Electoral tomó varios meses más. Cada estado también realizó sus propias elecciones y auditorías. Eso le dio a Trump, y a los políticos y grupos que lo apoyaban, tiempo y varios frentes para implementar ataques contra el proceso.En Brasil, un país con 220 millones de habitantes, el sistema electrónico de votación contó las boletas en dos horas. La autoridad electoral central y no los medios de comunicación, procedieron a anunciar al ganador esa noche, en una ceremonia que involucró a líderes del Congreso, los tribunales y el gobierno.El sistema de votación electrónica de Brasil contó las papeletas en dos horas.Victor Moriyama para The New York TimesBolsonaro permaneció en silencio durante dos días pero, con pocas opciones, al final se hizo a un lado.Sin embargo, ese enfoque también conlleva riesgos.“Se podría alegar que ser tan centralizado también te hace propenso a más abusos que en el sistema estadounidense, que está más descentralizado y permite básicamente una supervisión local”, dijo Omar Encarnación, profesor del Bard College que ha estudiado los sistemas democráticos en ambos países.Sin embargo, añadió, en Estados Unidos, varios estados han aprobado recientemente leyes de votación restrictivas. “Resulta claro que son dos modelos muy diferentes y, dependiendo del punto de vista, se podría argumentar cuál es mejor o peor para la democracia”.En el periodo previo a las elecciones, el sistema de Brasil también le permitió combatir de manera mucho más agresiva contra cualquier desinformación o conspiración antidemocrática. El Supremo Tribunal Federal ordenó redadas y arrestos, bloqueó a miembros del Congreso de las redes sociales y tomó medidas para prohibir a las empresas de tecnología que no cumplieran con las órdenes judiciales.El resultado fue una campaña radical e implacable destinada a combatir la desinformación electoral. Sin embargo las medidas también generaron reclamos generalizados de extralimitación. Algunas redadas se enfocaron en personas solo porque estaban en un grupo de WhatsApp que había mencionado un golpe de Estado. Algunas personas fueron encarceladas temporalmente sin juicio por criticar al tribunal. Un congresista fue sentenciado a prisión por amenazar a los jueces en una transmisión en vivo.Estas acciones estrictas de los tribunales han ampliado su enorme influencia en la política brasileña en los últimos años, incluido su papel central en la llamada investigación Lava Jato que envió a prisión al presidente Luiz Inácio Lula da Silva.“La audacia, la temeridad con la que los tribunales han actuado, no solo contra Bolsonaro, sino incluso contra Lula, sugiere que los tribunales se están comportando de una manera un tanto —odio usar la palabra irresponsable— pero tal vez incluso represiva”, dijo Encarnación.Sin embargo, a pesar de los esfuerzos del tribunal, miles de partidarios de Bolsonaro procedieron a atacar y saquear los recintos del poder de la nación en enero, una semana después de la toma de posesión de Lula.Si bien la situación fue inquietantemente similar al asalto al Capitolio de Estados Unidos el 6 de enero de 2021, los roles de los dos expresidentes fueron diferentes.Cientos de simpatizantes de Bolsonaro fueron detenidos temporalmente después de los disturbios de enero.Victor Moriyama para The New York TimesAmbos avivaron los reclamos y convencieron a sus seguidores de que se cometió un supuesto fraude, pero Trump les ordenó de manera explícita que marcharan hacia el Capitolio durante un discurso en las inmediaciones del lugar.Cuando los simpatizantes de Bolsonaro formaron su propia turba, Bolsonaro se encontraba a miles de kilómetros en Florida, donde permaneció por tres meses.En ambos países, cientos de invasores fueron arrestados y condenados, e investigaciones de los congresos están investigando lo sucedido. Por lo demás, las consecuencias han sido distintas.Al igual que Trump, Bolsonaro también ha defendido a sus seguidores.El viernes, Bolsonaro dijo que la revuelta no había sido un intento de golpe de Estado sino “viejitas y viejitos con banderas brasileñas en sus espaldas y biblias bajo sus brazos”.Pero las repercusiones políticas han sido diferentes.En Estados Unidos, gran parte del Partido Republicano ha aceptado las afirmaciones infundadas de fraude electoral, los estados han aprobado leyes que dificultan el voto y los votantes han elegido candidatos para el Congreso y las legislaturas estatales que niegan los resultados de las elecciones presidenciales.En Brasil, la clase política se ha alejado en gran medida del discurso de fraude electoral, así como del propio Bolsonaro. Los líderes conservadores están impulsando en la actualidad a un gobernador más moderado como el nuevo abanderado de la derecha brasileña.Encarnación afirmó que, a pesar de sus problemas, el sistema democrático de Brasil puede proporcionar un modelo sobre cómo combatir las nuevas amenazas antidemocráticas.“Básicamente, las democracias están luchando contra la desinformación y Dios sabe qué otras cosas con instituciones muy anticuadas”, dijo. “Necesitamos actualizar el hardware. No creo que haya sido diseñado para personas como las que enfrentan estos países”.Jack Nicas es el jefe de la corresponsalía en Brasil, que abarca Brasil, Argentina, Chile, Paraguay y Uruguay. Anteriormente reportó de tecnología desde San Francisco y, antes de integrarse al Times en 2018, trabajó siete años en The Wall Street Journal. @jacknicas • Facebook More