Analysis: The Trump DC Indictment

Can the government defraud the government?

Donald J. Trump has again been indicted by Special Counsel Jack Smith, this time relating to efforts to challenge the 2020 election. For the first time in American history, a former American president is being indicted for his conduct while in office. The political conduct of then-President Trump has been criminalized. And Special Counsel Smith prosecutes these political acts with novel, if not dubious, legal theories.

In total, Trump faces 4 counts: Conspiracy to Defraud the United States; Conspiracy to Obstruct an Official Proceeding; Obstruction of, and Attempting to Obstruct, an Official Proceeding; and Conspiracy Against Civil Rights.  Read the indictment here.

Special Counsel Smith goes to great lengths to unsuccessfully try to paint the indictment as not touching upon Trump’s right to speak publicly about the 2020 election or to contest the election results. Those efforts are unpersuasive for the reasons we’ll address below.

In total, Special Counsel Smith alleges Trump took part in “three criminal conspiracies”:

1. A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government;

2. A conspiracy to obstruct and impede the January 6 congressional proceeding at which the collected results are counted and certified (“the certification proceeding”); and

3. A conspiracy against the right to vote and to have one’s vote counted.

Here are the alleged facts and statutory violations against Trump – which are each addressed with specificity.