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What could an indictment of former President Donald Trump for the events of Jan. 6 include? Only special counsel Jack Smith and his team have a solid idea, but media reports and legal experts are zeroing in on charges to look for.
Court watchers suggest that a Jan. 6 indictment — which would be Trump’s third in recent months — could come any day. Here’s a rundown of possible charges.
This provision of the law (18 U.S. Code § 371) involves a conspiracy, meaning that there must be an agreement between at least two people; that the agreement must be related to committing another crime; and that at least one co-conspirator must make at least one overt act to further the conspiracy.
The conspiracy’s goal does not have to be achieved; a failure to achieve the goal, such as overturning the 2020 presidential election, does not negate the conspiracy.
Legal experts see the "fake electors" effort by Trump as potential grist for a conspiracy charge. As part of his efforts to remain in office after the 2020 election, Trump and some of his allies sought to have Republican officials in key battleground states submit slates of pro-Trump electors they hoped would be accepted as valid by then-Vice President Mike Pence in a joint session of Congress.
To demonstrate a conspiracy, the indictment might cite others who communicated with Trump about pursuing the electors plan (or it could refer to "unindicted co-conspirators" who may be charged later, or people who might have cooperated with prosecutors and worked out nonprosecution agreements).
"Conspiracy is an extremely common charge in almost any criminal case involving multiple actors," Randall D. Eliason, a former federal prosecutor who is now a lecturer at George Washington University’s law school, wrote recently. "It’s a great vehicle for prosecutors to use to lay out an entire criminal scheme, identifying all the actors and everything that they did."
Eliason suggested the crime being conspired about could be 18 U.S.C. § 1001, relating to the submission of false documents, such as false elector documents, to the federal government.
This law (18 U.S. Code § 1512) has been used successfully against hundreds of people who entered the U.S. Capitol on Jan. 6. Prosecutors have argued that their presence was intended to block an "official proceeding" — the official approval of the electoral votes to make Joe Biden president. But its use against Trump would be notable because he did not enter the Capitol that day.
Lawyers for some defendants have argued that this provision’s origin casts doubt on whether it’s relevant for Jan. 6’s events. This portion of the law stems from the Sarbanes-Oxley Act, a 2002 law aimed at wrongdoing by corporate executives. However, a federal appeals court, in a 2-1 decision, upheld the use of this provision in Jan. 6-related prosecutions.
Under the law, prosecutors would need to demonstrate how Trump "corruptly persuade(d) another person, or attempt(ed) to do so" in a way intended to "influence" the approval of the electoral votes. Legal experts say the target of this influence could be then-Vice President Mike Pence, who as president of the Senate was charged with handling the electoral votes in a joint session. It could also include a mix of electors or state officials Trump communicated with, such as Georgia Secretary of State Brad Raffensperger.
Proving intent "is always difficult," said Sean Morales-Doyle, director of the voting rights program at the liberal Brennan Center for Justice at New York University Law School. "But that is a question at issue in almost every criminal prosecution. It’s the kind of thing prosecutors have to prove on a daily basis."
This provision of the law (18 U.S. Code § 241) was the most surprising potential charge listed in the "target" letter sent to Trump, according to reporting by The New York Times and Bloomberg News. That’s because prosecutors often wield this law in cases involving police brutality and other violent acts, and because it wasn’t mentioned as a recommended charge in the House Jan. 6 committee’s final report.
The provision was originally enacted as a way to strengthen enforcement of Reconstruction-era laws after the Civil War, but it has been used in election-related cases for decades, bolstered by a 7-2 Supreme Court decision in the 1974 case Anderson v. United States. "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," the majority wrote.
The Justice Department’s manual for federal election-law prosecutors says this provision "has been an important statutory tool in election crime prosecutions" and urges its use "when addressing schemes to thwart voting in federal elections."
Prosecutors could argue that some subset of voters — those living in the states with fake elector slates, for instance, or all Biden voters, or all U.S. voters — had their "enjoyment of any right or privilege" infringed by the fake elector plan or other actions taken by Trump and his allies in December 2020 and January 2021.
This section of the law was used most recently — and successfully — in the March 2023 prosecution of Douglass Mackey of West Palm Beach, Florida. Prosecutors said Mackey urged supporters of the 2016 Democratic presidential candidate Hillary Clinton to cast their "votes" by text or social media posts, which would not have been valid votes.
The provision "does have a long history, but it is by no means moribund," Morales-Doyle said. "Thankfully, there aren’t that many criminal prosecutions of this sort. But it’s one of the tools prosecutors have."
A statute on criminal wire fraud (18 U.S. Code § 1343) could also be deployed by prosecutors, especially if they pursue charges related to Trump’s fundraising off his belief that the election result was invalid.
Prosecutors could also seek to directly tie Trump’s public comments on or before Jan. 6 to the Capitol violence later that day, using 18 U.S. Code § 2383. This provision, which was recommended by the House Jan. 6 select committee, criminalizes behavior that "incites … or engages in any rebellion or insurrection against the authority of the United States."
The consequences of barring Trump from public office would be severe, considering his current presidential campaign. But legal experts said using this law is also complicated by First Amendment arguments available to Trump’s defense; the other laws might be easier to prove in court.
"Smith may be keeping it fairly straightforward and simple by avoiding the harder-to-prove charge of sedition that federal prosecutors have used successfully against a few of the Oath Keepers," said Joan Meyer, a partner with the law firm Thompson Hine LLP and a former federal prosecutor.
More than a dozen members of the far-right Oath Keepers and Proud Boys have been convicted of seditious conspiracy charges related to Jan. 6, including the Oath Keepers’ founder, Stewart Rhodes, and the Proud Boys’ former leader, Enrique Tarrio.
PolitiFact staff writer Amy Sherman contributed to this report.
Anderson v. United States (1974)
Justice Department, "Federal Prosecution of Election Offenses, Eighth Edition," December 2017
Just Security, "Unpacking the "Surprise" Crime in DOJ’s Target Letter to Trump," July 20, 2023
Randall Eliason, "The Charges in Trump's Target Letter: Here's what the indictment might look like," July 20, 2023
Citizens for Responsibility and Ethics in Washington, "What Trump’s federal indictment for attacks on the 2020 election could look like," July 17, 2023
New York Times, "Potential Trump Charges Include Civil Rights Law Used in Voting Fraud Cases," July 19, 2023
New York Times, "In Hundreds of Jan. 6 Cases, Justice Dept. Wins a Battle (for Now)," April 7, 2023
Forbes, "Trump Could Be Charged With These Crimes In DOJ Jan. 6 Probe—And They All Could Include Prison Time," July 19, 2023
Daily Beast, "A Jan. 6 Trump Indictment Would Include Very Serious Charges," July 19, 2023
Jason Willick, "A Trump Jan. 6 indictment could be both an explosion and a dud" (Washington Post op-ed), July 20, 2023
Jessica Levinson, "Jack Smith’s surprise weapon against Trump has a long civil rights history" (MSNBC op-ed), July 21, 2023
CBS News, "Jan. 6 committee approves criminal referrals targeting Trump, urging DOJ to prosecute," Dec. 19, 2023
Associated Press, "Far-right influencer convicted in voter suppression scheme," March 31, 2023
Complaint and affidavit in support of an arrest warrant, U.S. vs. Douglass Mackey, Jan. 22, 2021
U.S. Attorney's Office, Eastern District of Kentucky, "Former Mayor Of Martin Sentenced To 90 Months For Civil Rights Offenses, Fraud, Vote Buying And Identity Theft," Dec. 16, 2014
Politico, "4 more Oath Keepers found guilty of seditious conspiracy tied to Jan. 6 attack," Jan 23, 2023
Email interview with Joan Meyer, partner with the law firm Thompson Hine LLP and a former federal prosecutor, July 21, 2023
Email interview with Randall D. Eliason, former federal prosecutor and now a lecturer at George Washington University’s law school, July 20, 2023
Email interview with Mark Osler, law professor at the University of St. Thomas, July 20, 2023
Interview with Sean Morales-Doyle, director of the voting rights program at the Brennan Center for Justice at New York University Law School, July 25, 2023