WASHINGTON, UNITED STATES — As special counsel Jack Smith winds down his high-stakes investigation of Donald Trump’s alleged efforts to overturn the 2020 election results, the former US president faces a slew of potential charges.
The 77-year-old Trump said Tuesday he had received a letter from Smith confirming he was a target of the probe and added that he expected to be arrested and indicted soon.
The special counsel, who was appointed by Attorney General Merrick Garland in November, declined to comment, but US media reports said the letter cited three federal criminal statutes: conspiracy to defraud the United States; obstruction of an official proceeding and deprivation of rights.
Trump has already been indicted and pleaded not guilty in two other criminal cases — for mishandling top secret government documents after leaving the White House and for allegedly paying 2016 election-eve hush money to a porn star.
Here is a look at the charges Trump — the frontrunner for the 2024 Republican presidential nomination — may face in connection with efforts to overturn his election loss to Democrat Joe Biden and the 6 January 2021 storming of the US Capitol by his supporters:
Conspiracy to defraud
The conspiracy statute makes it a crime if “two or more persons conspire either to commit any offense against the United States or to defraud the United States.”
Daniel Richman, a former federal prosecutor who now teaches at Columbia University, said the statute is “very broad” and can be applied in a number of ways to Trump’s conduct before and after the election, which he baselessly claimed was “stolen.”
“I’m assuming that a fraudulent effort to mislead Congress and to delay or prevent the certification of the election would be very plausible,” Richman told AFP.
It could be applied to Trump’s attempts to pressure Mike Pence into not certifying Biden’s election victory at the 6 January joint session of Congress — which the then-vice president ultimately refused to do.
It could also be used to prosecute Trump for another failed bid to stay in power — the submission of false slates of electors in seven states which Biden won.
Michigan charged 16 “false electors” this week with conspiracy, forgery and fraud for their role in the scheme, which was guided by two attorneys close to Trump, Rudy Giuliani and John Eastman.
Trump also called the secretary of state in Georgia and urged him to “find” enough votes to reverse Biden’s victory in the southern state, according to a recording of the phone call.
Giuliani and Eastman, along with other Trump associates, are believed to be a focus of Smith’s investigation and there would need to be other defendants in addition to Trump for prosecutors to bring a conspiracy charge.
Conspiracy to defraud the government is punishable by up to five years in prison.
Obstruction of an official proceeding
The charge of corruptly obstructing, influencing or impeding an official proceeding — the January 6 joint session of Congress — has been brought against more than 300 Trump supporters who stormed the Capitol that day.
When it comes to Trump, “there could be multiple obstruction counts, there could be a multiple-prong obstruction conspiracy with different aspects to it,” Richman said.
“One basis for an obstruction charge might be dealings that Trump and those around him had with witnesses in the case, those testifying before congressional committees, or doing other things to cover their tracks after 6 January,” he said.
Trump did not personally go to Congress on 6 January, but before his supporters stormed the Capitol he delivered a fiery speech nearby repeating his election-fraud falsehoods and urging the crowd to “fight like hell.”
Obstruction of an official proceeding carries a maximum prison term of three years.
Deprivation of rights
This statute stems from the post-Civil War era in US history when it was used to prosecute attempts to prevent formerly enslaved African Americans from exercising their voting rights.
It makes it a crime “for a person acting under colour of law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.”
That includes the right to vote and have it counted.
“In more recent times, the statute has been used against election fraud or election misconduct,” Richman said.
“What’s important about this charge, unlike the others, is it really puts front and centre that the victims are not just government actors,” the former prosecutor said, but ordinary Americans who risked being deprived of their votes.
Deprivation of rights is punishable by up to 10 years in prison.