Trump Indictment The DOJ’s Latest Big Conspiracy Theory.
Posted by Ed Folsom
August 5, 2023
On Thursday, August 4, 2023, former president Donald Trump was arraigned on an indictment that lays out the Department of Justice’s latest big conspiracy theory — now that Trump-Russia collusion has been thoroughly exhausted. And here we go again with Sarbanes-Oxley (the highly selective abuse of which I previously posted about, here) which provides the basis for counts 2 and 3 of the indictment. What’s it all about?
The first 42 pages of the 45-page indictment set out the prosecution’s heavily editorialized recitation of the facts that it seeks to prove in support of the charges. All of it involves statements and activities of former President Trump and unnamed “Co-Conspirators” between the 2020 presidential election and the certification of electors at the U.S. Capitol on January 6, 2021.
Count one charges a violation of Title 18 United States Code (USC) section 371, “Conspiracy to Defraud the United States.” That section reads as follows:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
Count One’s caption indicates that the prosecution’s theory is a conspiracy to defraud the United States versus a conspiracy to commit an offense against the United States. Typically, a scheme to defraud is a scheme to acquire money or property by fraud. Fraud requires that the perpetrator must know that his representations are false. Here, the prosecution’s theory appears to be that Trump and the unnamed “Co-Conspirators” knew that Trump actually lost the popular vote in the 6 states where they maintained that he had in fact won. Because Trump and the unnamed “Co-Conspirators” continued to claim that various forms of vote tampering occurred in those states, such that electors certified for now-President Biden should not be counted for Biden in the electoral college, and because they attempted to persuade former Vice President Pence to reject those electors on January 6, the prosecution argues that Trump and the “Co-Conspirators” conspired to defraud the United States, in violation of 18 USC section 371.
There is no conceivable case that Donald Trump conspired to acquire money or property. The prosecution’s theory therefore must treat the Presidency itself as a thing of value that is encompassed by the term “defraud” in 371. If the prosecution can stretch its way around that obstacle, what evidence does it possess to prove that Trump engaged in a conspiracy to deceive the United States with information he knew was false?
The indictment’s first 42 pages detail numerous occasions when former President Trump was told that there was not enough voter fraud, in the six states that he was focused on, to have altered the election’s outcome. But the indictment does not allege a single instance of Trump stating that he knew or believed that his claims about the election being stolen through various forms of vote fraud were false. In fact, according to the indictment, he consistently maintained to then Vice President Pence and others around him that vote fraud had occurred and that the election had been “stolen” from him.
For instance, paragraph 93 of the indictment alleges the following regarding a meeting on January 4, 2021, between Trump, Pence and others:
93. During the meeting, as reflected in the Vice President’s contemporaneous notes, the Defendant made knowingly false claims of election fraud, including, “Bottom line—won every state by 100,000s of votes” and “We won every state,” and asked—regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before—”What about 205,000 votes more in PA than voters?”
So, although special prosecutor Jack Smith editorializes in paragraph 93 that “the Defendant made knowingly false claims of election fraud,” the examples he cites indicate that the Defendant made claims of election fraud that that the Defendant believed to be true. And in criminal law, the fact that Jack Smith believes that Jack Smith knows the claims to be false does not establish “knowingly” as to the Defendant.
And there’s more. The indictment recites that Trump continued to express his belief that the election had been stolen from him throughout the day on January 6, 2021. Here’s text from indictment paragraphs 110 and 117, with emphasis added regarding the Defendant’s expressions of belief:
110. Upon receiving news that individuals had breached the Capitol, the Defendant’s advisors told him that there was a riot there and that rioters had breached the building. When advisors urged the Defendant to issue a calming message aimed at the rioters, the Defendant refused, instead repeatedly remarking that the people at the Capitol were angry because the election had been stolen.
117. After the 4:17 p.m. Tweet, as the Defendant joined others in the Oval Office to watch the attack on the Capitol on television, the Defendant said, “See, this is what happens when they try to steal an election. The people are angry. These people are really angry about it. This is what happens.”
Is all the stuff about false claims of election fraud just editorial fluff to poison the well against the Defendant? In other words, is the prosecution’s theory actually just that Trump’s attempt to defraud the United States had to do with his assertions to Pence that Pence had the authority not to certify the electors from the 6 states in controversy? While special prosecutor Jack Smith is running the 4 counts of this indictment up the legal flagpole to see whether his unconventional interpretation of the law will fly, why is it far-fetched to suppose that the Defendant might have believed in the legal advice he received, regarding unconventional interpretations of legitimate electoral college certification practices to address what he actually believed was broad and deep election fraud?
Counts Two and Three.
I will address counts two and three in reverse order. Both allege offenses under 18 USC section 1512. Count three alleges Obstructing of and Attempt to Obstruct an Official Proceeding, under subsection (c)(2) of section 1512, while count two alleges Conspiracy to Obstruct an Official Proceeding, under subsection (k).
Section 1512 is part of the Sarbanes-Oxley act, passed in the wake of the Enron scandal. The bill bore the title, “Public Company Accounting Reform and Investor Protection Act” in the Senate. In the House, it was the “Corporate and Auditing Accountability, Responsibility, and Transparency Act.” But its language is broad enough that some of its provisions have become darlings of federal prosecutors seeking to crush certain disfavored defendants. Section 1512, itself, is titled, “Tampering with a witness, victim, or an informant.” Again, the charge in count 3 was brought under subsection (c)(2). In whole, subsection (c) reads as follows:
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
The theory of Count 3 is that Donald Trump corruptly obstructed or attempted to obstruct, influence or impede an official proceeding — the certification of electors. But as you can see, the statute contains the element “corruptly.” Otherwise, every time a politician or lobbyist attempts to influence or succeeds in influencing an official Congressional proceeding it would be a criminal act under section 1512(c)(2). Every filibuster that obstructs or impedes such a proceeding would be a crime, etc. And as I have posted about before, what is required to meet the element of “corruptly” is not a settled issue.
Does it suffice for a person to simply be wrong about the appropriateness of his or her grounds for attempting to influence, obstruct or impede? Is that enough to establish that his actions were taken “corruptly?” If so, that makes ordinary politics and the exercise of political speech very dangerous. But I’m sure there’s no need to worry, as long as you fit within the prosecution’s “good guys” category, not the prosecution’s “bad guys” category.
Count 2 alleges a violation of Sarbanes-Oxley section 1512, subsection k, which states:
(k) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
While count 3 alleges that Donald Trump in fact obstructed or attempted to obstruct an official proceeding, count 2 alleges that he was involved in a conspiracy to obstruct or attempt to obstruct an official proceeding.
Count four charges “conspiracy against rights,” under 18 USC section 241 which provides:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
This statute is directed at the sort of things commonly called “hate crimes” these days. It prohibits people from interfering in another person’s exercise of rights or privileges guaranteed by the Constitution or U.S. laws. Here, the statute has been stretched to charge Donald Trump for his speech and speech-based actions regarding the certification of electors. The theory is that Donald Trump conspired with others to “injure, oppress, threaten, and intimidate one or more persons in the free exercise of…the right to vote and to have one’s vote counted.” Right…
You don’t want to be Jack Smith’s political enemy, because this is the kind of stuff he’ll come up with to take you off the board. Remember when Chuck Schumer said that then President-elect Donald Trump was “really dumb” to have crossed the U.S. intelligence community, and said: “Let me tell you, you take on the intelligence community, they have six ways from Sunday at getting back at you”? Ditto re the entire swamp.
Years ago, there were reports of a game that Assistant U.S. Attorneys used to play, to see how many federal charges they could conceive of against a given person. The federal criminal code is so vast, and its language is so broad and undifferentiated, that virtually nobody could escape prosecution in this game. And so, in the real world of political prosecutions it’s simply a matter of who gets targeted by whom. From there, it’s just a matter of conceptualizing how the language of various federal criminal statutes might be stretched to apply to the available facts and then applying the result to the target.
In D.C., the people who make up the jury pool have voted more than 90% Democrat in the past four presidential elections. They are steeped in a certain political narrative. For that reason, from the standpoint of resource allocation, it made sense to determine that Hillary Clinton should not be prosecuted for maintaining a private server for sensitive State Department-related emails and for destroying the evidence to cover it up. She would never have been convicted in the place where she would have been charged. And a D.C. jury isn’t going to convict anyone in a politics-related case that runs counter to the narrative the jurors are steeped in. Conversely, they will convict anyone in a politics-related case that furthers the narrative they are steeped in. Which is why, from a resource allocation standpoint, it makes perfect sense not to bother with the former and to pursue the latter.
That’s is a very big problem for those who occupy the wrong category of person. But it’s a wired-up good deal for those in the right category.