Heather Cox

Today a grand jury in Washington, D.C, indicted former president Donald J. Trump for conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. The charges stemmed from Trump’s attempt to overturn the results of the 2020 election. A grand jury is made up of 23 ordinary citizens who weigh evidence of criminal activity and produce an indictment if 12 or more of them vote in favor.

The grand jury indicted Trump for “conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted and certified by the government; “conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified”; and “conspiracy against the right to vote and to have one’s vote counted.”

“Each of these conspiracies,” the indictment reads, “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.” “This federal government function…is foundational to the United States’ democratic process, and until 2021, had operated in a peaceful and orderly manner for more than 130 years.”

As Rachel Weiner pointed out in the Washington Post, “conspiracies don’t need to be successful to be criminal, and perpetrators can be held responsible if they join the conspiracy at any stage.”

The indictment referred to six co-conspirators without identifying them by name, but the details included about them suggest that Co-Conspirator 1 is Trump lawyer Rudy Giuliani; Co-Conspirator 2 is lawyer John Eastman, who came up with the plan for then–vice president Mike Pence to use his ceremonial role of counting the electoral votes to throw the election to Trump; Co-Conspirator 3 is Trump lawyer Sidney Powell; Co-Conspirator 4 is Jeffrey Clark, a Justice Department lawyer whom Trump tried to push into the role of attorney general so he could lie that there had been election fraud; Co-Conspirator 5 appears to be Kenneth Chesebro, a Trump attorney behind the idea of the false electors.

The identity of Co-Conspirator 6, a political consultant, is unclear.

On The Reid Out tonight, law professor Neal Katyal suggested that the six were not indicted because the Justice Department “doesn’t want the trial of the other six to be bundled up with this and slow this down.” Los Angeles Times senior legal affairs columnist Harry Litman concluded that the absence of Trump’s White House chief of staff, Mark Meadows, from the indictment indicates he’s cooperating with the Department of Justice. Meadows had a ringside seat to the last days of the Trump administration.

The indictment is what’s known as a “speaking indictment,” one that explains the alleged crimes to the public. It undercuts Trump loyalists’ insistence that the Department of Justice is trying to criminalize Trump’s free speech by laying out that Trump did indeed have a right to challenge the election—which he did, and lost. He also had a first-amendment right to lie about the election.

What he did not have was a right to use “unlawful means of discounting legitimate votes and subverting the election results.”

The indictment begins by settling out that Trump “lost the 2020 presidential election” but that “despite having lost, [Trump] was determined to remain in power.” So he lied that he had actually won. “These claims were false, and [Trump] knew they were false.” More than 15 pages of the 45-page indictment establish that Trump knew the allegations he was making about election fraud were lies.

In one memorable December exchange, a senior campaign advisor wrote in an email, “When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0–32 on our cases. I’ll obviously hustle to help on all fronts, but it’s tough to own any of this when it’s all just conspiracy sh*t beamed down from the mothership.”

The Trump team used lies about the election to justify organizing fraudulent slates of electors in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin. Allegedly with the help of Republican National Committee chair Ronna McDaniel, they attempted to have the legitimate electors that accurately reflected the voters’ choice of Biden replaced with fraudulent ones that claimed Trump had won in their states, first by convincing state legislators they had the power to make the switch, and then by convincing Vice President Mike Pence he could choose the Trump electors.

When Pence would not fraudulently alter the election results, Trump whipped up the crowd he had gathered in Washington, D.C., against Pence and then, according to the indictment, “attempted to exploit the violence and chaos at the Capitol” to overturn the election results. “As violence ensued,” the indictment reads, Trump and his co-conspirators “explained the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims.” On the evening of January 6, 2021, the indictment alleges, Trump and Co-Conspirator 1 called seven senators and one representative and asked them to delay the certification of Biden’s election.

While they were doing so, White House counsel Pat Cipollone called Trump “to ask him to withdraw any objections and allow the certification. The Defendant refused.” Just before midnight, Co-Conspirator 2 emailed Pence’s lawyer, once again begging the vice president to “violate the law and seek further delay of the certification.”

While Trump loyalists are trying to spin the indictment as the weaponization of the Department of Justice against Trump, legal analyst George Conway noted on CNN tonight: "All the evidence comes from Republicans. If you go through this indictment and you annotate the paragraphs to figure out who are the witnesses the [special counsel] would use to prove particular points, they're all Republicans. Those are the people who were having the discussions, telling [Trump], 'You lost.'”

Trump will be arraigned at 4:00 p.m. Eastern time on August 3. The case of the United States of America v. Donald J. Trump has been randomly assigned to Judge Tanya S. Chutkan, appointed by President Obama in 2014 and confirmed 95–0 in the Senate. Chutkan has presided over dozens of cases concerning the defendants who participated in the events of January 6, 2021, and has been vocal during sentencing about the stakes of that event. In December 2021 she said: “It has to be made clear that trying to stop the peaceful transition of power, assaulting law enforcement, is going to be met with certain punishment.”

“The attack on our nation’s capital on January 6, 2021, was an unprecedented assault on the seat of American democracy,” Special Counsel Jack Smith said in his statement about the indictment.

“The men and women of law enforcement who defended the U.S. Capitol on January 6 are heroes. They’re patriots, and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives on the line to defend who we are as a country and as a people. They defended the very institutions and principles that define the United States.”

The prosecution of former president Trump for trying to destroy those institutions and principles, including our right to consent to the government under which we live—a right the Founders articulated in the Declaration of Independence—should deter others from trying to do the same. Moreover, it will defend the rights of the victims—those who gave their lives as well as all of us whose votes were attacked—by establishing the truth in place of lies. That realistic view should enable us to recommit to the principles on which we want our nation to rest.

Such a prosecution will reaffirm the institutions of democracy. Donald Trump tried to destroy “the free exercise and enjoyment of a right and privilege secured…by the Constitution and laws of the United States—that is, the right to vote, and to have one’s vote counted.” Such an effort must be addressed, and doing it within the parameters of our legal system should reestablish the very institutions Trump loyalists are trying to undermine.

As former House speaker Nancy Pelosi (D-CA) said this evening: “Like every criminal defendant, the former President is innocent until proven guilty…. The charges…must play out through the legal process, peacefully and without any outside interference…. As this case proceeds through the courts, justice must be done according to the facts and the law.”