Wednesday, August 2, 2023
Special Prosecutor Jack Smith's recent Indictment of former President Donald Trump carries serious charges, and this is the most important case for our country and our constitutional processes. My thoughts:
- The Indictment is 45 pages long and has four charges: Count 1: 18 U.S.C. § 371 (Conspiracy to Defraud the United States); Count 2: 18 U.S.C. § 1512(k) (Conspiracy to Obstruct an Official Proceeding); Count 3: 18 U.S.C. §§ 1512(c)(2), 2 (Obstruction of and Attempt to Obstruct an Official Proceeding); Count 4: 18 U.S.C. § 241 (Conspiracy Against Rights).
- What is not in the Indictment is important - that is, a charge related to incitement. Special Prosecutor Jack Smith removes many of the First Amendment defense arguments by making this a case about obstruction and conspiracy. The Indictment (p.2) openly states that "[t]he Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome -determiniative fraud during the election and that he had won." Removing free speech claims and instead focusing on the unlawful activity itself will eliminate some of the challenges that might have been raised.
- Donald Trump is the sole defendant - this is significant, as the case can move faster without needing to accommodate the schedules of co-defendants. It is also significant because the jury will be focused only on one person and four charges. This streamlining makes it easier for the jury to understand.
- The Indictment reminds me of someone building a structure using Legos. It is methodical and all the pieces fit together. And when you put all the pieces together you have a clear picture.
- Arguably, this indictment is more of a speaking indictment than the prior charges brought by Jack Smith in Indictment #2 against Donald Trump. But one could say that even alleged comments like the former president saying to former VP Mike Pence - "You're too honest" - are likely to be admissible at trial. After all, it can be offered as evidence to show Trump's mens rea.
- The Indictment would make a terrific ethics class on what a lawyer should and should not do. You can call it - the lawyers who violated the law v. the lawyers who saved democracy. The unindicted co-conspirators who are portrayed in some instances as lawyers who failed to remember basic ethical principles against the lawyers who refused to perpetuate lies and adhered to a constitutional process.
- Many ask why so many unindicted coconspirators, why did Jack Smith not charge them. My thoughts are that it puts these individuals on notice that several avenues might be pursued: a) They could come forward now, reach an agreement and cooperate, receiving the benefits of cooperation; b) The prosecutor could grant them immunity and then they would no longer be able to claim a 5th amendment privilege --they would be required to testify and if they testified falsely the prosecutor has additional ammunition in charges such as perjury; c) The prosecutor could indict them in a separate or later indictment; or d) The prosecutor could keep them as witnesses, unidentified and uncharged co-conspirators, and not move against them. It is always possible that an unindicted coconspirator is already cooperating. So, beyond the indictment, Jack Smith has possible additional evidence if he needs more.
- It is likely that there is more evidence that is not outlined in this Indictment. At the J6 hearings, we all heard testimony of Trump's alleged obstruction. So cooperation agreements, or just witnesses testimony, may already be evidence held by the government.
- Some question - why this Indictment took so long in being charged. This is not a new argument - we hear it all the time in white collar cases. The bottom line is that white collar cases often involve documents and the process can be significantly slower than a street crime case. Additionally the government typically proceeds with cases working up the ladder. The initial J6 prosecutions were for individuals on the ground committing criminal acts. The government then moved to leaders of various groups. Moving next to those at the top, therefore, makes perfect sense.
- The initial charge, 18 USC 371, is the classic generic conspiracy charge used often by the government. In the federal system, unlike some states, a prosecutor can charge both the conspiracy and the underlying offense. What is somewhat unique here is that there are two ways to bring a 371 charge -- a) conspiracy to commit a specific offense; or b) conspiracy to defraud. Typically the first is used by the government - a conspiracy to commit a specific offense, with the offense being anything from obstruction, wire fraud, mail fraud, etc. The government here chose to charge conspiracy to defraud the government, a less used basis for conspiracy charges. But in looking at the alleged evidence, this charge is the essence of that conduct - namely, the defendant is alleged to have been part of a conspiracy to defraud the United States.
- The last charge, 18 USC 241, is not something we often see charged. According to Syracuse's Trac Reporting there have only been 11 prosecutions in 2023 with this as the lead charge. And that is a 1600 % increase from last year, 113% from five years ago. If you go back 20 years, during the Bush presidency, it was a heavily used charge. To use a charge that has not been heavily used in the past few years may provide less caselaw with interpretation, but it also demonstrates how significant this alleged conduct may be.
- Of the cases pending against former President Trump, it is my opinion that this case is the most signifcant. Although national security is crucial to our country (case # 2), this case involves alleged conduct that tested whether we would continue to be a democracy.