Transcript of the video explaining the indictment:
“Donald Trump has been criminally indicted
for interfering with the 2020 presidential election.
He’s alleged to have participated in a vast conspiracy
to interfere with the election and hold onto power.
Yes, a federal grand jury empaneled in Washington, D.C.
has indicted Donald J. Trump on four felony counts
as part of Special Counsel Jack Smith’s investigation
into efforts to overturn the 2020 presidential election.
As Jack Smith said in his press conference…
– Today, an indictment was unsealed charging Donald J. Trump
with felony violations of our national security laws
as well as participating
in a conspiracy to obstruct justice.
– So if you’re counting, that makes three indictments
and 78 criminal counts in two states
and the District of Columbia.
Donald Trump is the first president in US history to try
to interrupt the peaceful transfer of power to his successor
and the first “Home Alone 2” actor
to be indicted three separate times.
– Down the hall and to the left.
– So how close did the conspirators come to succeeding
and how serious did they think it would be
for Trump to refuse to leave?
Well, according to the indictment,
when a Deputy White House counsel
told one of Trump’s co-conspirators, Jeffrey Clark,
that there would be mass protests
if Trump remained president
despite no findings of voter fraud, Clark said, quote,
“That’s why we have an Insurrection Act.”
Now, there was wild speculation
about what this indictment would actually look like.
And here what the Department of Justice did
is very interesting.
Instead of breaking things up piecemeal,
they allege that all the efforts to change
or subvert the election are part of one general conspiracy
that aimed to reverse the election.
And while the indictment mentions the Capitol riots
and Trump’s speech from that day,
none of the alleged crimes rely on the riots or that speech.
The indictment doesn’t charge Trump
for inciting the January 6th riots.
That would have been extremely hard to prove
for reasons that we’ve discussed on this channel a lot,
namely that the standard is very high
and it would be very close to charging someone
for potentially political speech.
But here the riots,
according to the Department of Justice’s narrative,
were just another opportunity for the conspirators
to delay or overturn the election.
For example, during the riots, the conspirators were texting
and calling senators to try to get them
to delay certification and to pressure Mike Pence.
So the riots were not an end in themselves,
but a means to further the conspiracy.
And this is a much cleaner way of conceptualizing the crimes
from the DOJ’s perspective than other ways
that they could have drafted this indictment.
Instead of lots of small towers with limited foundations,
they constructed one giant tower with a huge base,
or more specifically, three large conspiracies
sort of operating in parallel at the same time
with generally the same aim.
The first conspiracy was to overturn the legitimate results
of the 2020 presidential election
by using knowingly false claims of election fraud
to prevent the actual slates of electors
being collected, counted, and certified.
The second conspiracy was to corruptly obstruct
and impede an official proceeding,
that is the actual certification of the electoral vote.
And then the third conspiracy was to effectively hamper
the right of some people to exercise their right to vote,
effectively trying to discount or prevent the votes
being counted in states where Biden won
where the conspirators were putting forth
a fake slate of electors.
Now, a quick word about conspiracy and free speech.
Many are bemoaning the indictment
as the criminalization of political speech,
but that seems to be based on a misunderstanding
of how criminal conspiracies actually work.
Consider this great commentary
from NYU Law Professor Noah Rosenblum.
“The First Amendment protects the right to free speech,
but does that mean that you can say whatever you want
without facing criminal liability?
Not at all. Consider the following two scenarios.
I walk into a store and buy a crowbar.
No crime. Life is good.
Two, I call my buddy and say, “Let’s go buy crowbars
and use them to deprive people of their right to vote.”
He says, “I agree!
Let’s conspire to do this thing together.”
I walk into the store and buy a crowbar. Bad news.
Crime. Life is bad.
The only difference between these two acts
is the fact of agreement, which is expressed in speech,
although it needn’t be.
The crime is conspiracy, agreement to commit a crime
plus a step towards its accomplishment.
It’s not the speech that’s criminal.
It’s what the speech does,
constitute an element of another crime.
Here, Trump is charged with conspiracy, but the lies he made
about the election are part of showing his knowing fraud,
an element of the crime.
Don’t worry, you can still lie in politics
as much as you want.
Just don’t do it as an element of another crime, like say,
participating in a conspiracy
to defraud people of their right to vote.”
And that’s exactly right.
The only thing that I would add is a few other scenarios.
The third scenario, a person says to themselves,
“I’m gonna go out and buy a crowbar
to deprive people of the right to vote.”
And then I go out and buy a crowbar.
Still not a crime because there’s no conspiracy,
i.e. an agreement with another person.
Then that’s important because in conspiracies,
if you have an agreement, all you need is one overt act
in furtherance of the conspiracy.
And in the absence of a conspiracy,
the act of buying a crowbar probably isn’t enough
to rise to the level of attempted interference
because to attempt a crime by yourself
usually requires conduct that constitutes a substantial step
towards completing that crime.
And then there’s the fourth scenario.
A person says to themselves,
“I’m gonna buy a crowbar to deprive people
of the right to vote,” buys the crowbar,
and then actually starts hitting people
waiting in line to vote.
Now, still there’s no conspiracy,
but now you’ve taken a substantial step towards the crime
and likely completed the crime,
and you’re guilty of that initial crime.
So in the conspiracy context,
and actually in many different legal contexts,
speech will be relevant evidence.
Was a conspiracy formed?
What was the aim of that conspiracy?
Did individual members have the requisite intent
of the underlying crime?
Was an overt action in furtherance of the conspiracy taken?
Did the defendant say factually false things
to induce others to act?
But here it’s not the speech that’s punished,
it’s the conspiracy.
So with that in mind,
that takes us to the indictment itself.
The indictment starts by correctly noting
that Trump had a right to speak about the election, quote,
“and even to claim, falsely,
that there had been outcome-determinative fraud
during the election and that he had won.
He was also entitled to challenge the results
through lawful means, such as,” quote,
“seeking recounts or audits of the popular vote in states
or filing lawsuits challenging ballots and procedures.”
And as the indictment notes, Trump pursued these methods,
but they were uniformly unsuccessful.
However, Trump did not have a right to dispute the election
through, quote, “unlawful means
of discounting legitimate votes
and subverting the election results.”
The indictment says that Trump
perpetrated three criminal conspiracies to stay in office,
and we start with 18 U.S.C. 371.
That section criminalizes the use of deceptive practices
in connection with any conspiracy for the purpose
of impairing, obstructing, or defeating the lawful function
of any department of government.
Trump is charged with conspiring to stop Congress
from certifying the election
by submitting fake electoral slates,
and there are two prongs to Section 371 cases.
The offense prong prohibits conspiracies to commit acts
that are otherwise defined as criminal under federal law.
And the defraud prong prohibits conspiracies
to obstruct a lawful function of the government
by deceitful means.
And the government must prove that the defendant entered
into a conspiracy with the specific intent
to defraud the United States,
that the conspirators used deceitful or dishonest means,
and that one of the members of the conspiracy performed
at least one overt act for the purpose
of carrying out the conspiracy.
For the government to prove that Trump committed the crime,
it must show that he used deceit, craft, or trickery
or dishonest means to achieve it.
Section 371 does not criminalize every conspiracy
to disrupt a government function.
It only breaches conspiracies that use deceit,
craft, or trickery or dishonest means.
And we’ll talk about Trump’s defenses later,
but he’s probably going to claim that he didn’t use deceit
if he truly believed that he won the election.
But the indictment concludes that Trump knew he lost.
And the indictment lists all the people
who told Trump that he lost, including the Vice President,
leaders of the DOJ who were appointed by Trump,
the Director of National Intelligence,
the Director of the Department of Homeland Security’s
Cybersecurity and Infrastructure Security Agency,
senior White House officials, campaign staffers,
Republican state legislators and officials,
and dozens of state and federal courts.
And the indictment alleges
that Trump privately acknowledged his loss.
After the Chairman of the Joint Chiefs of Staff
urged Trump not to take action on a national security issue,
Trump agreed saying, quote, “Yeah, you’re right.
It’s too late for us.
We’re going to give that to the next guy.”
Yet publicly, Trump repeatedly tweeted
and encouraged his supporters to come to Washington
on January 6th to stop the vote.
And allegedly in another conversation on January 1st, 2021,
Mike Pence told Trump that he didn’t think
that there was a constitutional basis for Trump’s claims,
that the vice president lacked the authority
to change the results of the election.
And quote, in response,
the defendant told Vice President, “You’re too honest.”
Now, this strongly implies that Trump knew he had lost
and was asking Pence to lie.
And there are other examples.
Apparently he referred to some of Sidney Powell’s theories
as crazy, and even Rudy Giuliani said, quote,
“We don’t have the evidence, but we have lots of theories.”
But despite this, it is alleged
that Trump knowingly continued to make false claims
about the election and further took actions
to subvert the election, and the indictment notes
that they might have tricked other people into action.
For example, the fraudulent electors were, quote,
“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.
The defendant and co-conspirators
then caused these fraudulent electors
to transmit their false certificates to the Vice President
and other government officials to be counted
at the certification proceedings on January 6th, 2020.”
Now, some legal commentators claim that the government needs
to prove that the defendant intended to swindle money
or other tangible objects from the victim
in order to be charged under section 371.
But that’s only true if Trump was charged with a fraud crime
like wire fraud, but here he wasn’t.
The prosecutor doesn’t need to prove that the conspiracy
actually actually led to any property or monetary loss
by the US government or its agencies.
The Department of Justice’s Criminal Resource Manual
cites a 1924 case, Hammerschmidt versus United States,
for this proposition.
And in that case, Justice Taft wrote, quote,
“It is not necessary that the government shall be subjected
to property or pecuniary loss by the fraud,
but only that its legitimate official action and purpose
shall be defeated by misrepresentation, chicane,
or overreaching of those charged
with carrying out the governmental intention.”
And several more recent cases have affirmed
that the word defraud in Section 371, quote,
“not only reaches financial or property loss
through the use of a scheme or artifice to defraud,
but also is designed and intended
to protect the integrity of the United States
and its agencies, programs, and policies.”
Now, the second criminal charge relates to Subsection 1512k,
which makes conspiracy to violate Section 1512
a separate offense subject to the same penalties
as the underlying offense.
And a 1512k charge has no specific overt act element,
and the courts have generally declined
to imply one under such circumstances.
Now, regardless of which section is invoked,
conspirators are criminally liable for any crime committed
in the foreseeable furtherance of the conspiracy.
The indictment says that Trump, quote,
“did knowingly combine, conspire, confederate,
and agree with co-conspirators known,
and unknown to the grand jury, to corruptly obstruct
and impede an official proceeding,
that is, the certification of the electoral vote.”
Now, there are many examples of Trump
and his co-conspirators trying
to stop the certification process,
and their actions on January 6th are notable
as the indictment accuses the conspirators
of exploiting the violence at the Capitol
in furtherance of their plot.
After the rioters had been removed from the Capitol,
Trump, “through White House aides,
attempted to reach two United States Senators at 6:00 PM.
From 6:59 PM until 7:18 PM, Rudy Giuliani placed calls
to five United States Senators
and one United States Representative.
Co-Conspirator 6 attempted to confirm phone numbers
for six United States Senators whom defendant
had directed Giuliani to call and attempt to enlist
in further delaying the certification.”
Quote, “In one of the calls, Giuliani left a voicemail
intended for a United States Senator that said,” quote,
“We need you, our Republican friends,
to try to just slow it down so we can get these legislatures
to get more information to you.
And know they’re reconvening at 8:00 tonight,
but the only strategy we can follow is to object
to numerous states and raise issues
so that we get ourselves into tomorrow,
ideally until the end of tomorrow.”
Trump also called another senator
repeating false allegations of fraud in Arizona and Georgia.
He also, quote, “claimed that the Vice President’s actions
had been surprising and asked the Senator to,” quote,
“object to every state and kind of spread this out
a little bit like a filibuster.”
Shortly before the meeting to certify the election,
White House Counsel urged Trump to drop his objections
and allow the meetings to proceed.
Trump refused.
The meeting of Congress was delayed for six hours,
and when it resumed at 8:00 PM,
it certified Biden’s election as president.
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And the third charge relates to 18 U.S.C. 1512c2.
Trump was indicted for obstructing
an official proceeding of Congress.
Now, the initial media reports about the target letter
were confusing because they reported
that Trump was being charged with witness tampering,
and that’s because the short title of 18 U.S.C. 1512
is “Tampering with a witness, victim, or informant.”
But here, Trump wasn’t charged
with witness tampering per se.
Section 1512 covers other kinds of obstruction of justice.
He was actually charged with violating Section c2
of the statute, which states, “Whoever corruptly 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.”
Now, section 1512c was added to the code
as part of the Sarbanes-Oxley Act of 2002.
And to convict Trump under the statute,
the government has to prove that he attempted
to obstruct an official proceeding
and that he acted with corrupt intent.
Now, the first element is relatively simple
for the government to prove.
Many of the January 6th rioters
were charged with violating 1512c.
These defendants argued that the January 6th meeting
of Congress was not an official proceeding,
but courts ruled against them because Section 1515a1
defines official proceeding for purposes of Section 1512
to include a congressional proceeding.
Now, the second element
is whether Trump acted with corrupt intent.
And some of the January 6th defendants
challenged their indictments on the grounds
that this element is unconstitutionally vague
since the word corruptly isn’t defined by Section 1512c,
but several circuit courts
have already rejected this contention.
The courts conclude that “corruptly” in 1512c
includes two components.
One, intent to obstruct, impede, or influence,
and two, wrongfulness.
And then count number four relates to the deprivation
of rights under color of state law under 18 U.S.C. 241.
Now, under that section, a government official
can’t deprive someone of their rights,
and the statute dates from the Reconstruction Era,
but it doesn’t require that the defendant’s conduct
be motivated by a specific bias against the victim
such as race, gender, or discrimination.
But Section 241 makes it unlawful for “two or more persons
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.”
And here the idea is that the conspirators conspired
to prevent people from being able
to exercise their right to vote.
The offense is always a felony
even if the underlying conduct
would not on its own establish a felony violation
of another criminal civil rights statute.
Now, critics of this indictment believe
that Trump shouldn’t have been charged
with violating Section 241 because this law was passed
during Reconstruction as a way to punish members
of the Ku Klux Klan and other people
from harassing Black voters.
And while it’s true that this law was originally aimed
at stopping harassment of Black voters after the Civil War,
it is in no way limited to stopping white Confederates
from intimidation and harassment.
And the DOJ has used this law to prosecute conspiracies
to prevent the proper counting of ballots
in federal elections for more than 100 years.
The DOJ has charged government officials under 241
when officials tried to stuff a ballot box
with forged ballots, prevent the official count
of ballots in primary elections,
destroy voter registration applications, destroy ballots,
exploit the infirmities of elderly or handicapped people
by casting absentee ballots in their names,
illegally register votes
and cast absentee ballots in their names,
injure, threaten, or intimidate a voter
in the exercise of their right to vote,
impersonate qualified voters,
fail to count votes and to alter votes counted,
to steal votes by changing the votes cast
by voters at voting machines, and the list goes on and on.
Now, many of these alleged crimes
will hinge on Trump’s mental state,
and we’ve covered this before.
Did Trump have a specific intent to obstruct, impede,
or influence the proceeding of Congress?
Well, it’s definitely possible.
But since this indictment came down,
there have been a lot of bad legal takes
about what it actually means,
especially with respect to Trump’s mental state
and what the prosecutors actually have to prove.
Many journalists and even some lawyers have said
that in order to convict Trump on these charges,
prosecutors must prove that Trump knew
that he lost the election.
See, for example, this headline in “The Washington Post,”
which says, “The former president’s intent
and whether he knew he was lying about the election fraud
are key issues for prosecutors.”
Now, this is a big misunderstanding
about what prosecutors must prove
about Trump’s mental state.
Now, look, this stuff is hard, but it’s not that hard.
Now, first of all, criminal prosecutors prove intent
and internal mental states all the time.
It’s not impossible. It’s not even that hard.
You can do it using statements that the defendant said.
You can prove it using surrounding circumstances.
Or in the case of conspiracies,
you can even use the statements of your co-conspirators
because in a conspiracy, you’re generally liable
for the acts of your co-conspirators,
and the statements of your co-conspirators are not hearsay.
And second of all, prosecutors have been using the statutes
under which Trump has been charged
against the January 6th protestors with great success,
and Trump’s potential defenses
and issues about mental states
have been raised and repeatedly rejected.
He’s not the first guy to claim
that there was election fraud
and thus his actions were excused.
Now, to review, the DOJ says that Trump
intentionally participated in three conspiracies
that violate federal law.
First, Trump is charged with violating Section 371
that makes it illegal to conspire to defraud
or lie to the United States.
The meaning of defraud is interfering
or obstructing a lawful government function
by deceit, craft, or trickery or dishonest means.
The indictment alleges facts showing that Trump used deceit
and trickery and dishonest means
to replace the legitimate electors with fake ones.
And that’s the reason for the heading on page 27,
which says, quote, “The defendant’s attempt
to leverage the Justice Department to use deceit
to get state officials to replace legitimate electors
and electoral votes with defendant’s.”
And what Trump believed about the 2020 election
and thus whether he lied or was mistaken
goes to the element of deceit in Section 371.
And that’s arguably one of the reasons
why the indictment contains so much information
about whether Trump lied or not.
In addition, it also just provides color
and explanation about his motive.
And if he did not actually believe he won the 2020 election,
he would almost certainly
have violated Section 371’s prohibition
against defrauding the United States government,
i.e. lying to the government.
But the second conspiracy
is that Trump and his co-conspirators
obstructed the January 6th congressional proceeding
where the election would be certified
in violation of two sections of section 1512.
And someone else who was charged with this violation
is January 6th defendant Alan Hostetter,
who is charged with violating Section 1752c2
and 1512k, just like Trump was.
He tried to raise the First Amendment defense
that Trump will rely on.
But a federal judge rejected this defense explaining that,
quote, “Mr. Hostetter is not being prosecuted
for engaging in protected First Amendment activity,
and I am making my decision without regard
to his political beliefs,
which I believe he holds sincerely.
Mr. Hostetter has a right to believe whatever he likes
about the 2020 presidential election
and to voice those opinions.
But the First Amendment does not give anyone a right
to obstruct or impede Congress
by making it impossible for them to do their job safely.”
The judge ruled that Hostetter and his co-conspirator,
quote, “knowingly and intentionally
entered into that agreement with the intent
of furthering its unlawful goal” of disrupting
and impeding the Electoral College certification.
And similarly, in Trump’s situation,
the government need only show that he intentionally
took steps to obstruct the Electoral College certification.
So for example, when the government points to Trump’s speech
at The Ellipse, they don’t have to prove that in his mind
he knew everything he was saying was a lie.
Instead, the speech is evidence that he wanted
to encourage people to physically occupy the Capitol.
And once those people were inside the Capitol
and the certification was delayed,
Trump and his co-conspirators continued to act
in furtherance of their conspiracy
by calling senators to further delay the vote.
And Trump’s subjective belief and motive
might help explain those actions, but they’re not necessary
to prove the crime that he’s alleged of.
And the third conspiracy is that Trump allegedly interfered
with the right to vote and to have one’s vote counted
in violation of Section 241.
And that section requires that the defendant had an intent
to deprive an individual of their rights
and that the federal right violated was clearly delineated.
And in a January 6th prosecution of Douglass Mackey,
a jury instruction explained that the government
had to prove, quote, “that the defendant knowingly
and intentionally joined the conspiracy
with the intent to further a specific objective.”
And the Mackey jury instruction explains how a jury
should assess the defendant’s criminal intent
within the context of this particular section.
Quote, “The indictment alleges that the objective
of the charged conspiracy was to injure, oppress, threaten,
or intimidate one or more persons in the free exercise
and enjoyment of their right to vote.
The government must therefore prove
beyond a reasonable doubt that the defendant knowingly
and intentionally joined the conspiracy
with the intent to further that objective.
In this case, the government has alleged that the object
of the conspiracy was specifically to injure one
or more persons in the free exercise
and enjoyment of their right to vote.
I instruct you that the statute covers conduct intended
to obstruct, hinder, prevent, frustrate,
make difficult or impossible,
or indirectly rather than directly
assault free exercise of the right.
For example, hinder is defined as to make slow
or difficult the progress of, to hamper,
to hold back, to prevent, to check.”
And again, Trump’s subjective belief
about the overall election or election fraud isn’t necessary
or an element of the crime.
So with the possible exception of the first count,
Trump’s subjective belief about the 2020 election
is basically irrelevant.
It’s his intentionality about his actions that matter.
Here’s how elections lawyer Marc Elias explained it.
Quote, “I walk into a bank,
and I think they’re wrongfully holding my money.
I think my balance is 5,000,
and they think my balance is zero,
and I genuinely believe that I’m owed $5,000.
That doesn’t excuse me from robbing the bank.
I can’t pull out a gun and take the money.
Particularly with the fake electors scheme,
even if you believe that you won, you were not entitled
to have people submit fake forms on January 6th.”
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