On Tuesday, July 18, Donald Trump revealed that he had received a letter two days earlier notifying him that he was under investigation for his attempts to change the outcome of the November 2020 presidential election. As he noted, this letter indicates that an indictment is imminent. According to the media familiar with it, three counts are mentioned.
It is of course possible that there are more, and more could be added after the indictment, as in the case of the classified documents last Friday. Of the three counts mentioned, two, which were among the recommendations of the January 6 Commission of Inquiry, were expected. The third is more surprising. Here they are.
It’s the most obvious. It’s title 371 of the United States Code: “If two or more persons conspire, either to commit an offense against the United States or to defraud the United States […], and one or more such persons commit an act to achieve the object of the conspiracy, each shall be fined […] or imprisoned for not more than five years, or both. »
It was used by Special Prosecutor Robert Mueller against 13 Russians for their attempts to interfere in the 2016 presidential election. officials in various states (in particular, Georgia) to alter the election results, the college of “false” voters, pressure on Vice President Mike Pence not to validate the counting of the votes of the great electors…
Nor is it a surprise. This is Code Title 1512, the quintessential charge for trials related to January 6, 2021, which encompasses several statutes that do not directly involve witness tampering. Thirty months after the storming of the Capitol, out of more than 1,069 people charged, more than 310 were charged for the 1512 title, but it was the C status that was applied to them: “Anyone who, in a corrupt manner, ( 1) alters, destroys, truncates or conceals a record, document or other object, or attempts to do so, with the intention of impairing the integrity or the availability of the object for use in a proceeding official; or (2) otherwise obstructs, influences or obstructs any official process, or attempts to do so, shall be liable to a fine under this title or to imprisonment for a term not exceeding 20 years, or both. »
In the case of January 6, the “official procedure” is the counting of the votes of the electors: it was interrupted because the entry of the insurgents into the Capitol caused the evacuation of the elected officials. Donald Trump himself did not enter the Capitol. But the Jan. 6 Board of Inquiry found that the plan hatched with his lawyers to pressure Mike Pence to change the election result fit that count. The fact that Trump continued to pretend he won when his allies told him he was wrong also matters, because it means he was aware of the illegality of his move. That’s not all.
Lawyers raise another objection to the use of this status for the January 6 insurgents, the “corruptly” way. They argue that it implies that the defendants derive a personal benefit from their action. But on January 6, the insurgents wanted to put Trump back in power, thus benefiting someone else. The public prosecutor, on the other hand, considers that it is enough that they are aware of the illegality of their act. This case is unsettled and could end up in the Supreme Court. For Donald Trump, the personal benefit is obvious.
It’s title 18 of the Code and it’s the unexpected count. The January 6 commission did not include it in its recommendations. It can designate two statuses, beginning with 241: “If two or more persons conspire to injure, oppress, threaten or intimidate any person […] in the free exercise or enjoyment of any right or privilege guaranteed to him by the Constitution […] They shall be liable to a fine under this Title or to imprisonment for not more than ten years, or to both […]. »
It is a legacy of the Reconstruction era (1863-1877), after the Civil War. It targeted members of the Ku Klux Klan who were trying to terrorize black people from voting in the southern states. It was then used to judge electoral fraud. In 1950, a judge of one of the 13 United States Courts of Appeals ruled in a ballot box stuffing case that honest vote counting was “a right of every voter.” “If his vote is invalidated, in whole or in part, he has been aggrieved in the free exercise of any right or privilege granted to him by the laws and constitution of the United States,” he added.
In 1974, Thurgood Marshall, the first black justice of the Supreme Court, reinforced this view by adding that every voter had “a constitutional right to an honest count of his vote, unimpaired by fraudulent votes.”
That status could apply to attempts by Trump’s team to alter the election outcome in states he lost. Here again, the case of Georgia and in particular, the appeal in which Trump asked the Secretary of State to “find” him 11,780 votes, could be key. It could also relate to his attempt to halt the vote count after the polls closed, as he knew the mail-in ballots were mostly Democratic. It could also encompass the constitution of colleges of “false” electors in key states (intermediaries who officially elect the president on January 6 following the election).
The important aspect here is the mention “under cover of the law”. This status has mainly been used in cases of police violence, therefore abuse of power, but it can also apply to civil servants. Donald Trump was still President of the United States Commander-in-Chief of the Armed Forces when he pressured state officials, as well as his vice president, to alter the election result in his favor. The indictment is expected in the coming days in Washington.
