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Donald Trump broke the news this week of his target letter in special counsel Jack Smith’s 2020 election investigation.
Since then, we’ve learned the letter cited three federal statutes, apparently involving conspiracy, obstruction and civil rights.
Here’s how these possible charges could factor in a potential Trump indictment:
- Conspiracy to defraud the United States. 18 U.S. Code Section 371 bars two or more people from conspiring to commit an offense against or defraud the government. It’s a broad statute, but one way it could surface here is with the fake elector scheme that included submitting phony certificates to Congress and the National Archives. The House Jan. 6 select committee listed this law among its criminal referrals to the Justice Department for Trump and others.
- Obstruction. 18 U.S. Code Section 1512 is titled “Tampering with a witness, victim, or an informant” but it prohibits, among other things, obstructing an official proceeding. I mention that because it’s possible Trump could be charged under this law but not with anything having to do with witness tampering. Indeed, the obstruction charge has been used frequently against lower-level defendants for obstructing the congressional count on Jan. 6, 2021. This law, which can intersect with the above-mentioned conspiracy charge, was also among the Jan. 6 committee’s criminal referrals.
- Civil rights. This sort of charge hasn't been in focus like the other two have been over the past couple of years. 18 U.S. Code Section 241, for example, prohibits conspiring “to injure, oppress, threaten, or intimidate” anyone “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.” Of course, the right that comes to mind here is voting — what the whole coup plot was about — so a charge under this less immediately obvious law could flow alongside the more-expected obstruction and conspiracy statutes.
One of the many open questions here is, to the extent Trump is potentially charged in one or more conspiracies, who are his co-conspirators and will they be charged alongside Trump? Or would they be merely un-indicted co-conspirators?
Whatever charges come in an expected Trump indictment, I would expect Smith’s team to lay out its theory of the case in a so-called speaking indictment, as it did in Trump’s classified documents case that’s proceeding in Florida.
So we may soon learn how these reported statutes and/or any others surface in an indictment that, with Trump receiving a target letter over the weekend, could come any day now.