- 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. Now, it's actually not weird
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and the link is down below. 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
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