Special counsel Jack Smith has been toiling away for months, calling witnesses before grand juries and litigating against claims of privilege in his investigation of twice-indicted former president Donald Trump. Given the accelerated pace of his investigation, the inner-circle witnesses from whom Smith has obtained testimony and the expected state indictment in Georgia on a portion of the plot to overthrow the 2020 election, some experienced prosecutors — including former Justice Department lawyers — think Smith is likely to bring an indictment before Fulton County, Ga., District Attorney Fani T. Willis pulls the trigger.

Out of concern for controlling evidence and keeping witness testimony under wraps, federal prosecutors generally don’t like other proceedings to precede their own cases. If so, we might then see an indictment in the federal Jan. 6 case before the second week in August, when Willis has advised the courthouse in her county to make way for a substantial case.

What will the case look like? The boatload of evidence — much of which has come to light in only the past few months — is jaw-dropping. That poses a common prosecutorial dilemma: How big a case should Smith bring so it is proportional to the enormity of the attempted coup but also digestible enough so a jury can get its arms around the facts and the law?

Building on a prior prosecution memo, a group of seven former prosecutors and defense attorneys — lawyers with decades of collective constitutional and criminal law experience — published at Just Security a voluminous updated memo giving their best estimate (and advice to Smith) as to what to expect.

The authors at Just Security consolidated the seven-part conspiracy the House select committee set out into three essential prongs. They explained the first prong: “Trump knew he lost the election but did not want to give up power, so he worked with his lawyers on a wide variety of schemes to change the outcome. Those schemes included creating fraudulent electoral certificates that were submitted to Congress, implicating statutes such as 18 U.S.C. § 371, which prohibits conspiracies to defraud the United States” and 18 U.S.C. §1001, which prohibits false statements to the government. Second, after the phony elector scheme failed, Trump tried to pressure Vice President Mike Pence to obstruct the joint session in violation of 18 U.S.C. § 1512. And third, when that too failed, “Trump went to his last resort: triggering an insurrection in the hope that it would throw Congress off course, delaying the transfer of power for the first time in American history. This implicated statutes such as 18 U.S.C. § 2383, which prohibits inciting an insurrection and giving aid or comfort to insurrectionists.”

Applying the first two statutes — fraud and obstruction of an official proceeding — to the facts should not be difficult; operating under a lower evidentiary threshold, U.S. District Judge David O. Carter already found that Trump and lawyer John Eastman “probably” violated those laws.” Since then, the authors pointed out, evidence concerning seven slates of phony electors procured with Trump’s direct knowledge has come to light. These slates were allegedly assembled “with the purpose that those electors be submitted to Congress and the National Archives, and that the false slates of electors were in fact submitted to Congress.” Fortunately, a parade of witnesses was left behind — ranging from Pence and his chief of staff and lawyer to former Trump campaign and White House staff to the electors themselves. If former White House chief of staff Mark Meadows has “flipped,” Smith will have an even more compelling case.

The incitement charge might be trickier, given the difficulty in proving Trump’s intent to cause violence, First Amendment issues for his Jan. 6, 2021, speech on the Ellipse, and the lack (so far) of definitive evidence connecting Trump to the militia groups. Given the gravity of the offense, the authors suggested proceeding but with a narrower approach based on Trump’s original call-out to his supporters, “his infamous 2:24 PM tweet targeting Pence and his 187 minutes of inaction in derogation of his affirmative duties while the riot raged.” Under a narrower approach, prosecutors could omit the speech on the Ellipse.

The authors concluded: “Based on all the available evidence, case law, and analogous historical precedent, Donald Trump’s combined support for the insurrectionists and inaction while the insurrection was ongoing seems to more than pass the bar to support charges under DOJ policy for engaging in the January 6, 2021, insurrection and providing support, aid, or comfort to the insurrectionists under the criminal insurrection statute, 18 U.S.C. § 2383.”

Because this statute has not been used since the Civil War (although several militia leaders were convicted under a related statute for seditious conspiracy), and because other, more easily provable charges are available, Smith might not want to charge this most serious crime. However, the authors made a persuasive case that if Attorney General Merrick Garland keeps his promise to follow the law and the facts, the charge would be unavoidable. Indeed, no charge better captures the essence of Trump’s alleged coup attempt. Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington and one of the co-authors of the Just Security memo, told me: “Smith can charge this case in a way that is straightforward but fully captures the use of deception, pressure, and ultimately violence to thwart the peaceful transfer of power in a way that pushed democracy in America to the brink.”

As for potential defenses, the authors found no legitimate claim of presidential immunity to commit crimes and no evidence that Trump acted in good faith. (“They all knew that Trump had lost the election in each of the states that submitted phony electoral certificates — and they knew the express purpose of submitting those electoral certificates was to overturn a lawful election. Indeed, the central plotters … expressly acknowledged that the scheme was unlawful.”) Likewise, a defense based on advice of counsel is not available when the lawyers themselves are alleged to be co-conspirators.

Even without knowing the grand jury testimony (especially from Pence) that remains secret, Smith’s case, as the authors at Just Security laid out, would be devastating. In digging out each nugget of information, piling one on top of another and applying them to the elements of the alleged crimes, the memo makes an overwhelming case for indictment on three easily comprehensible charges. It therefore is practically inconceivable Smith would fail to bring an indictment.

Source: https://www.washingtonpost.com/opinions/2023/07/13/jan-6-indictment-trump-prosecution-memo/

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