Analysis: How Jack Smith structured the Trump election indictment to reduce risks

WASHINGTON — In accusing former President Donald Trump of conspiring to subvert American democracy, special counsel Jack Smith charged the same story three different ways. The charges are novel applications of criminal laws to unprecedented circumstances, heightening legal risks, but Smith's tactic gives him multiple paths in obtaining and upholding a guilty verdict.

"Especially in a case like this, you want to have multiple charges that are applicable or provable with the same evidence, so that if on appeal you lose one, you still have the conviction," said Julie O'Sullivan, a Georgetown University law professor and former federal prosecutor.

That structure in the indictment is only one of several strategic choices by Smith — including what facts and potential charges he chose to include or omit — that may foreshadow and shape how an eventual trial of Trump will play out.

The four charges rely on three criminal statutes: a count of conspiring to defraud the government, another of conspiring to disenfranchise voters, and two counts related to corruptly obstructing a congressional proceeding. Applying each to Trump's actions raises various complexities, according to a range of criminal law experts.

At the same time, the indictment hints at how Smith is trying to sidestep legal pitfalls and potential defenses. He began with an unusual preamble that reads like an opening statement at trial, acknowledging that Trump had a right to challenge the election results in court and even to lie about them, but drawing a distinction with the defendant's pursuit of "unlawful means of discounting legitimate votes and subverting the election results."

While the indictment is sprawling in laying out a case against Trump, it brings a selective lens on the multifaceted efforts by the former president and his associates to overturn the 2020 election.

"The strength of the indictment is that it is very narrowly written," said Ronald S. Sullivan Jr., a Harvard Law School professor and former public defender. "The government is not attempting to prove too much, but rather it went for low-hanging fruit."

For one, Smith said little about the violent events of Jan. 6, 2021, leaving out vast amounts of evidence in the report by a House committee that separately investigated the matter. He focused more on a brazen plan to recruit false slates of electors from swing states and a pressure campaign on Vice President Mike Pence to block the congressional certification of Joe Biden's victory.

That choice dovetails with Smith's decision not to charge Trump with inciting an insurrection or seditious conspiracy — potential charges the House committee recommended. By eschewing them, he avoided having the case focus on the inflammatory but occasionally ambiguous remarks Trump made to his supporters as they morphed into a mob, avoiding tough First Amendment objections that defense lawyers could raise.

For another, while Smith described six of Trump's associates as co-conspirators, none were charged. It remains unclear whether some of them will eventually be indicted if they do not cooperate, or whether he intends to target only Trump so the case will move faster.

Among the charges Smith did bring against Trump, corrupt obstruction of an official proceeding is the most familiar in how it applies to the aftermath of the 2020 election. Already, hundreds of ordinary Jan. 6 rioters have been charged with it.

To date, most judges in Jan. 6 cases, at the district court and appeals court level, have upheld the use of the statute. But a few Trump-appointed judges have favored a more narrow interpretation, like limiting the law to situations in which people destroyed evidence or sought a benefit more concrete than having their preferred candidate win an election.

Trump, of course, would have personally benefited from staying in office, making that charge stronger against him than against the rioters. Still, a possible risk is if the Supreme Court soon takes up one of the rioter cases and then narrows the scope of the law in a way that would affect the case against Trump.

Proving Intent

Some commentators have argued in recent days that prosecutors must convince the jury that Trump knew his voter fraud claims were false to prove corrupt intent. But that is oversimplified, several experts said.

To be sure, experts broadly agree that Smith will have an easier time winning a conviction if jurors are convinced that Trump knew he was lying about everything. To that end, the indictment details how he "was notified repeatedly that his claims were untrue" and "deliberately disregarded the truth."

"What you see in Trump — a guy who seems to inhabit his own fictional universe — is something you see in other fraud defendants," said David Alan Sklansky, a Stanford University law professor. "It's a common challenge in a fraud case to prove that at some level the defendant knew what he was telling people wasn't true. The way you prove it is, in part, by showing that lots of people made clear to the defendant that what he was saying was baseless."

Moreover, the indictment emphasizes several episodes in which Trump had firsthand knowledge that his statements were false. Prosecutors can use those instances to urge jurors to infer that Trump knew he was lying about everything else, too.

The indictment, for example, recounts a taped call on Jan. 2, 2021, with Georgia's secretary of state, Brad Raffensperger, in which Trump shared a series of conspiracy theories that Raffensperger systematically debunked in detail. But on Twitter the next day, Trump "falsely claimed that the Georgia Secretary of State had not addressed" the allegations.

And on Jan. 5, 2021, Pence told Trump that he had no lawful authority to alter or delay the counting of Biden's electoral votes, but "hours later" Trump issued a statement through his campaign saying the opposite: "The vice president and I are in total agreement that the vice president has the power to act."

In any case, several rioters have already argued that they did not have "corrupt intent" because they sincerely believed the election had been stolen. That has not worked: Judges have said that corrupt intent can be shown by engaging in other unlawful actions like trespassing, assaulting police and destroying property.

"Belief that your actions are serving a greater good does not negate consciousness of wrongdoing," Judge Royce C. Lamberth wrote last month.

Trump, of course, did not rampage through the Capitol. But the indictment accuses him of committing other crimes — the fraud and voter disenfranchisement conspiracies — based on wrongful conduct. It cites Trump's bid to use fake electors in violation of the Electoral Count Act and his solicitation of fraud at the Justice Department and in Georgia, where he pressured Raffensperger to help him "find" 11,780 votes, enough to overcome Biden's margin of victory.

"Whether he thinks he won or lost is relevant but not determinative," said Paul Rosenzweig, a former prosecutor who worked on the independent counsel investigation into President Bill Clinton. "Trump could try to achieve vindicating his beliefs legally. The conspiracy is tied to the illegal means. So he has to say that he thought 'finding' 11,000 votes was legal, or that fake electors were legal. That is much harder to say with a straight face."

Proving Trump's intent will also be key to the charges of defrauding the government and disenfranchising voters. But it may be easier because those laws do not have the heightened standard of "corrupt" intent as the obstruction statute does.

Court rulings interpreting the statute that criminalizes defrauding the United States, for example, have established that evidence of deception or dishonesty is sufficient. In a 1924 Supreme Court ruling, Chief Justice William Howard Taft wrote that it covers interference with a government function "by deceit, craft or trickery, or at least by means that are dishonest." A 1989 appeals court ruling said the dishonest actions need not be crimes in and of themselves.

This factor may help explain the indictment's emphasis on the fake electors schemes in one state after another, a repetitive narrative that risks dullness: It would be hard to credibly argue that Trump and his co-conspirators thought the fake slates they submitted were real, and the indictment accuses them of other forms of trickery as well.

"Some fraudulent electors were 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," it said.

A Novel Charge

The inclusion of the charge involving a conspiracy to disenfranchise voters was a surprising development in Smith's emerging strategy. Unlike the other charges, it had not been a major part of the public discussion of the investigation — for example, it was not among the charges recommended by the House Jan. 6 committee.

Congress enacted the law after the Civil War to provide a tool for federal prosecutors to go after Southern white people, including Ku Klux Klan members, who used terrorism to prevent formerly enslaved Black people from voting. But in the 20th century, the Supreme Court upheld a broadened use of the law to address election fraud conspiracies. The idea is that any conspiracy to engineer dishonest election results victimizes all voters in an election.

"It was a good move to charge that statute, partly because that is really what this case really is about — depriving the people of the right to choose their president," said Robert Litt, a former federal prosecutor and a top intelligence lawyer in the Obama administration.

That statute has mostly been used to address misconduct leading up to and during an election, like bribing voters or stuffing ballot boxes, rather than misconduct after an election. Still, in 1933, an appeals court upheld its use in a case involving people who reported false totals from a voter tabulation machine.

It has never been used before in a conspiracy to use fake slates of Electoral College voters from multiple states to keep legitimate electors from being counted and thereby subvert the results of a presidential election — a situation that itself was unprecedented.

Trump's lawyers have signaled they will argue that he had a First Amendment right to say whatever he wanted. Indeed, the indictment acknowledged that it was not illegal in and of itself for Trump to lie.

But in portraying Trump's falsehoods as "integral to his criminal plans," Smith suggested he would frame those public statements as contributing to unlawful actions and as evidence they were undertaken with bad intentions, not as crimes in and of themselves.

A related defense Trump may raise is the issue of "advice of counsel." If a defendant relied in good faith on a lawyer who incorrectly informed him that doing something would be legal, a jury may decide he lacked criminal intent. But there are limits. Among them, the defendant must have told the lawyer all the relevant facts and the theory must be "reasonable."

The indictment discusses how even though White House lawyers told Trump that Pence had no lawful authority to overturn Biden's victory, an outside lawyer — John Eastman, described in the indictment as co-conspirator 2 and who separately faces disbarment proceedings — advised him that Pence could.

Several legal specialists agreed that Trump has an advice-of-counsel argument to make. But Samuel Buell, a Duke University law professor, said Smith was likely to try to rebut it by pointing to the repeated instances in which Trump's White House legal advisers told him that Eastman was wrong."You have to have a genuine good-faith belief that the legal advice is legitimate and valid, not just 'I'm going to keep running through as many lawyers as I can until one tells me something I want to hear, no matter how crazy and implausible it is,'" Buell said.

This article originally appeared in The New York Times.