The 45th President of the United States, Donald J Trump, was indicted in early August 2023 on four counts of attempting to overturn the 2020 US election. So what are the charges against Trump and what strategies is he employing in his defence? How likely are the charges to stick?
The indictment counts
Quick disclaimer: I am not a lawyer. But I have been following this story, as discussed by US legal experts, closely, and my aim here is to summarise what they say. I’m only going to discuss the Washington DC case for election interference in this article – we can save the Florida documents case for another time.
The indictment – case 1:23-cr-000257-TSC filed on 1 August 2023 – alleges that Trump:
- Conspired to defraud the United States (section 371 of United States Code Title 18, hereinafter abbreviated to 18 USC)
- Conspired to obstruct an official proceeding [of the United States] (18 USC section 1512(k))
- Obstructed and attempted to obstruct an official proceeding [of the United States] (18 USC section 1512(c))
- Conspired against rights (18 USC section 241)
Dogs that didn’t bark in the night
It’s worth noting what Trump isn’t charged with – and why. He isn’t (yet) accused of inciting the violence seen on 6 January 2021 and nor is he charged with sedition or insurrection against the United States. Should he be so, and found guilty, he could be permanently disqualified from holding public office. These charges would be difficult to prove and the latest case against Trump is ‘built for speed’.
The indictment talks of “unnamed co-conspirators” – again, these people are not named in order to simplify the trial process. Trump is desperate to delay his various legal trials until after the 2024 election – his last chance is to win another term as president and use the levers of power to halt the trials or pardon himself.
Compared to the Florida documents case, where classified information is involved, security clearances are required for all legal personnel involved and multiple defendants are charged, this case is (deliberately) much simpler.
The meaning of the charges
What do the indicted charges mean? Let’s break it down.
Conspiracy to defraud the United States 18 USC 371 means “defraud” in the sense of “using dishonesty, fraud and deceit to impair, obstruct and defeat lawful government function” (to quote the indictment, paragraph 4(a)). Note the distinction between this law and 18 USC 1341 which deals with financial fraud.
Conspiring to obstruct and actually obstructing an official proceeding (of the US government, 18 USC 1512) pertains to Trump plotting with others and directly attempting to pressure officials (such as the infamous call to Georgia Secretary of State Brad Raffensperger) to overturn the election results in a number of ‘swing states’ which Biden and the Democrats won in the 2020 election.
The 18 USC 241 charge may appear somewhat vague to those not versed in US legal niceties, but it accuses Trump of conspiring to prevent US citizens exercising their right to vote and in particular the right to have their vote counted. This title was originally enacted in the aftermath of the American Civil War to prevent Ku Klux Klan members intimidating, in particular, black voters but has been expanded across the years to encompass the kind of behaviour Trump is accused of – namely attempting to throw out legitimately cast ballots.
The indictment notes that Trump’s actions “targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election” and this is where the indicted count of obstructing an official proceeding takes on additional gravitas.
Although not explicitly mentioned in the conspiracy counts of the indictment, the “official proceeding” is enshrined in 3 USC 15, which describes how the vice president shall preside over the counting of the electoral votes on 6 January following a general election – and that “the role of the [vice president] while presiding over the joint session shall be limited to performing solely ministerial duties.”
The electoral college system
In case this sounds confusing, recall that voters in US presidential elections don’t actually vote for the candidates directly – instead each state appoints a number of electors, determined by the number of Congressional and Senate seats for that state (and Washington DC, which is not yet a fully-fledged state but nonetheless has three electoral college votes).
Since every US state has two Senate seats, there are a minimum of three electors per state with 538 electoral college votes in total. Most states work on a ‘winner takes all’ basis, whereby all the state’s electoral votes are allocated to the winner of the popular vote in that state, regardless of margin. Maine and Nebraska employ a more proportional system but only had four and five votes respectively to be won in 2020. The electoral college system was designed to avoid an unsuitable populist winning the presidency …
The fake electors scheme
One key charge against Trump is of trying to present slates of fake electors, thereby sowing confusion amid loud cries of election fraud as to whether these should be accepted over the genuine electors voted for by the people of each state.
Since nobody knew which slate of electors was genuine, the election result would be decided by state legislatures which are overwhelmingly Republican-controlled.
Trump’s defences
A member of Trump’s legal team did the rounds of US TV networks on 6 August. John Lauro made a number of arguments during these appearances which hint at the arguments Trump is going to defend himself with. Let’s take a look at them.
“Free speech!”
“Trump had a free speech right to challenge the 2020 election.” Speaking on NBC’s Meet The Press show, Lauro stated that “President Trump believed in his heart of hearts that he had won that election and as any American citizen he had a right to speak out under the First Amendment.”
The indictment itself anticipates and forecloses this exact argument in paragraph 3 on page 2 of a 45-page document: Trump was indeed free to claim election fraud and to challenge the result – using legal methods, for example the US court system – as Al Gore did in 2000. The document notes that Trump did do this – and lost heavily. Trump’s legal team have indicated a desire to reopen this issue but it remains to be seen how this fits with the legal doctrine of res judicata – you can’t relitigate an issue a court has already finally ruled on.
“Just asking nicely”
On the same show, Lauro raised a different First Amendment defence by claiming that Trump was just asking Pence nicely, when Pence was presiding over the counting of the electoral college votes on 6 January 2021, to delay the count. Trump, you see, was not commanding Pence but aspiring to have Pence hear his concerns. As Lauro put it, “You’re allowed to petition your government for a redress of grievances. A President is even allowed to petition his Vice President.”
But when your boss at work ‘asks’ you to perform a task, you’re expected to agree – Trump, as president and head of the US executive branch, was not politely asking Pence with the expectation that Pence could refuse. Especially damning for this line of argument is the assertion that Trump told Pence “You’re too honest” when Pence did indeed refuse. Lauro also seems to miss the obvious point that this defence is tantamount to admitting guilt to the 18 USC 1512 obstruction of proceedings charges.
There are limitations to the extent of free speech; every crime in history has involved ‘speech’. Lauro’s related argument that Trump’s proclamations about the 2020 election results are akin to “People disagree[ing] all the time about constitutional points” is also to completely miss the point – Trump is not charged with “misunderstanding the constitution” but rather with creating a situation that he could use to his advantage to steal the election.
Trump “genuinely believed” he had won the election but was defrauded of his rightful victory
Aka a “state of mind” defence, the legal theory behind this is that nobody can ever definitively prove another person’s thoughts – as Lauro said on Fox News, he would “like [the prosecutors] to prove beyond a reasonable doubt that Donald Trump believed these allegations [that he knew he lost the 2020 election] were false.”
However, prosecutors routinely use circumstantial evidence to prove criminal intent. Numerous senior Republican figures close to Trump told him that he had lost and there is the evidence of Chris Krebs. Krebs was appointed Director of the Cybersecurity and Infrastructure Security Agency by then-President Trump in November 2018. Krebs tweeted on 17 November 2020 that the election was secure – and was fired by Trump that same day.
According to a New York Times report, those promoting the “fake electors” scheme knew that the scheme would ultimately fail but that it would “buy time” for Trump to win lawsuits and deprive Biden of victory. The defence is weakened by a leaked audio of Trump’s former ally Steve Bannon noting that Trump planned to declare victory on election night before postal votes (expected to be more Democratic than Republican) were counted. We now know in addition that key Trump ally Roger Stone was promoting the “fake electors” scheme on 5 November 2020 – two days before the election was called for Biden. Plotting to overturn an election you haven’t yet formally lost doesn’t fit this defence strategy.
The only person who could testify as to Trump’s state of mind is Trump himself – anything else would be inadmissible hearsay. Yet Trump cannot take the witness stand; he would be destroyed in cross-examination. The prosecution need only present clips of the countless lies Trump told as president to shred his credibility. The ultimate implication of this strategy would be to admit that Trump can’t discern fantasy from reality; not an ideal quality for a prospective US president.
“Advice of counsel”
“My lawyers told me it was OK”. But, as head of the executive branch, Trump would be expected to show some familiarity with the law. One can’t just follow a lawyers’ advice if it’s obviously contrary to law or if you suspect it might be. Pence refused Trump’s “requests” as unlawful, which should have sown doubt in Trump’s mind.
Most seriously, this defence would impact attorney-client privilege: discussions between legal professionals and their clients are usually considered confidential. Trump could offer a selective waiver of this privilege, but doing so would be fraught with problems for him. Prosecutors could in theory accept this, but one has to wonder why they would: if they rejected it, Trump would either have to abandon this defence or turn over all discussions with his lawyers to prosecutors.
These could be highly incriminating – we now know that the prosecutors convinced a judge that there was “probable cause” to search Trump’s Twitter account. Trump doesn’t use email or SMS, but prosecutors clearly believe there is relevant information in his Twitter private messages. Given the participation of Trump’s counsel in the conspiracy, any such attorney-client privilege might already be deemed waived.
The court of public opinion
Trump’s best hope is to either pollute the jury pool or to attempt to create sufficient doubt in the minds of one or more jurors that a hung jury and mistrial would result – the latter of which he could spin as a victory but would introduce additional delay.
Both sides are well aware of this tactic and prosecutors have been pushing hard for a protective order to prevent Trump discussing the evidence in public. Trump knows full well that he has few if any viable defences to the charges in this case and that he is coming face-to-face with accountability for the first time in his 77 years.
