Federal prosecution of Donald Trump (election obstruction case)

Throughout his 2016 presidential campaign, Trump repeatedly sowed doubt on the election certification process. Campaigning in Colorado, Trump claimed without evidence that the Democratic Party "[rigged] the election at polling booths".[9] In October 2016, Trump claimed through a series of tweets that widespread voter fraud would occur in the 2016 presidential election. These statements were echoed by Rudy Giuliani, Trump's legal advisor.[10] Trump continued expressing these sentiments into the 2020 presidential election; for months, he prepared arguments in the event of his loss, primarily relating to mail-in ballots.[11] As early as August 2020, he enlisted conservative activist and lawyer Cleta Mitchell to help overturn the election.[12] The Department of Homeland Security warned that Russia was amplifying claims of fraud occurring in mail-in voting to intentionally sow distrust in the voting process as a whole.[13] Two days before Election Day, Trump told reporters that he would be "going in with [his] lawyers" as soon as the election was over.[14]

Bolstered by pro-Trump pundits and perceived strong turnouts at rallies, the Trump campaign was confident that they were going to win the election. On Election Day, preliminary surveys at polling places showed Trump in the lead as his supporters were more likely to turn out in person amid the COVID-19 pandemic, but his lead diminished as mail-in ballots were counted. Following Trump's final campaign event in Grand Rapids, Michigan, Trump's son Eric wagered that he would win at least 322 electoral votes.[15] At the behest of Giuliani, Trump declared in a 2 a.m. election night speech in the East Room that he had won the election and that the counts being reported were fraudulent.[16] As ballots were being counted, campaign data expert Matt Oczkowski bluntly informed Trump that he was going to lose the election. White House Counsel Pat Cipollone told him that invalidating the results of the election would be a "murder-suicide pact".[17] Under then-attorney general William Barr, the Department of Justice failed to find widespread voter fraud in the election.[18] Former speaker of the House Newt Gingrich predicted that Trump voters would erupt in "rage",[19] a sentiment shared by House Republican leader Kevin McCarthy, who told Laura Ingraham on The Ingraham Angle that Republicans should not "be silent about this".[20]

Trump and several co-conspirators repeatedly sought to overturn the results of the election. The Department of Justice investigation into these attempts focused on the implementation of the Trump fake electors plot, in which Trump and his allies would draft allegedly fraudulent certificates of ascertainment affirming Trump as the winner. The effort to write these documents and persuade Republican officials to sign them was performed by Trump's lawyers, including Giuliani and John Eastman, who claimed that irregularities in the election had occurred and proposed that an "alternate" slate of electors should be established while they gathered evidence. Although dozens of these electors were installed and affirmed Trump as the winner, the seven state legislatures targeted in the plot—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin—certified Biden's victory, although Pennsylvania and New Mexico agreed to consider Trump the winner if he succeeded in the many lawsuits challenging the election. The scheme involved sending the fake electoral slates to vice president Mike Pence, pressuring him to count the fake votes. Alternatively, Trump allies posited that Pence could consider the election "defective" under the Electoral Count Act and allow the House of Representatives to decide the outcome.[21]

During the two months following the election, Trump made multiple phone calls to Republican officials in states that had narrowly been won by Biden, asking them to reverse the results and give the victory to him. One such call was to Georgia secretary of state Brad Raffensperger, asking him to "find 11,780 votes". Raffensperger recorded the call and subsequently released it to the public.[22] Both Trump and Giuliani called Rusty Bowers, the speaker of the Arizona House of Representatives, asking him to look into claims of fraud, but he declined to do so without evidence. John Eastman also called Bowers on January 4 asking him to undo the state's certification of Biden's win, but he refused.[23] Trump and his attorneys, as well as Republican members of Congress, also called or met with state officials in Michigan and Pennsylvania, urging them to report that Trump had actually won their states.[24]

On December 19, 2020, six weeks following his election loss, Trump urged his followers on Twitter to protest in Washington, D.C. on January 6, the day Congress was set to certify the results of the election, writing, "Be there, will be wild!" Over the course of the following weeks, Trump would repeat the January 6 date. Militant organizations such as the Proud Boys and groups affiliated with the conspiracy theory QAnon formulated logistical plans to gather at the United States Capitol. The Red-State Secession Facebook page encouraged its followers to post the addresses of its "enemies". Trump continued to repeat false claims about the election in multiple states leading up to January 6, including Georgia, Pennsylvania, Michigan, Nevada, and Arizona.[25] On the morning of January 6, Trump gave a speech in the Ellipse, an elliptical park near the White House, and encouraged his followers to walk down to Pennsylvania Avenue to incite within Republicans lawmakers the "kind of pride and boldness that they need to take back our country". Provoked by Trump, the mob of Trump supporters stormed the Capitol.[26]

The January 6 Capitol attack resulted in hundreds of criminal proceedings.[27] The House of Representatives voted to impeach Trump for a second time on January 13.[28] He was acquitted by the Senate on February 13.[29] The House of Representatives voted to create a select committee to investigate the attack in June 2021.[30] Ahead of its final report, the committee voted to accuse Trump of the four charges later brought against him in the indictment[31] and referred him to the Department of Justice.[32] In a CNN interview in January 2022, deputy attorney general Lisa Monaco stated that the Department of Justice would investigate the Trump fake electors plot.[33] By March 2022, the Department of Justice had opened an investigation into the events of January 6 and Trump's attempts to overturn the election.[34] The Department of Justice began obtaining White House phone records in April in connection with the January 6 investigation,[35] and a federal grand jury issued subpoenas to Trump's lawyers in connection with the fake electors plot in May.[36] The Washington Post reported in July that the Department of Justice was investigating Trump's actions on January 6.[37]

The January 6 investigation was overseen by Thomas Windom, an obscure federal prosecutor.[38] On November 18, 2022, attorney general Merrick Garland appointed Jack Smith to serve as special counsel for the January 6 investigation and the FBI investigation into Donald Trump's handling of government documents.[39] Smith intensified both investigations ahead of increased efforts by Trump to focus on his 2024 presidential campaign.[40] In June 2023, Trump was indicted in connection with the classified documents investigation.[41] Leading up to Trump's indictment in the January 6 investigation, prosecutors continued investigating several strands, including through hundreds of documents provided by former New York Police Department commissioner Bernard Kerik.[42] On July 18, Trump was given a target letter.[43] The following week, his lawyers met with prosecutors, signaling the investigation was nearly complete.[44]

The indictment

The indictment was unsealed on August 1, 2023. A grand jury in the U.S. District Court for the District of Columbia indicted Trump on four charges: conspiracy to defraud the United States, obstructing an official proceeding, conspiring to do so, and conspiracy against rights.[45][46] D.C. district judge Tanya S. Chutkan was randomly assigned to hear the case.[47]

According to the indictment, on December 8, 2020, a senior campaign advisor admitted that "our research and campaign legal team can't back up any of the claims ... It's tough to own any of this when it's all just conspiracy shit beamed down from the mothership."[48] On January 1, Trump learned that Mike Pence did not believe the vice president could reject electoral votes. Trump called Pence and told him, "You're too honest."[49] On January 3, it is alleged that White House deputy counsel Patrick F. Philbin privately said that if Trump held onto power, there would be "riots in every major city in the United States", to which "Co-conspirator No. 4" (likely Jeffrey Clark) replied "That's why there's an Insurrection Act",[50] implying that Trump could command the military to keep himself in power.[51] The indictment also described a previously unreported discussion between Trump and White House Counsel Pat Cipollone, in which Cipollone advised Trump, hours after the Capitol riot started, to drop his objections to the election. Trump refused.[45]

The indictment references six co-conspirators. Although they were not named in the indictment, news agencies reported their likely identities based on public information. The indictment does not charge them.[52]

• Co-conspirator No. 1: Trump lawyer Rudy Giuliani, as confirmed by his lawyer, Robert Costello, who claimed the indictment "eviscerates the First Amendment".[45]
• Co-conspirator No. 2: Trump lawyer John Eastman, as confirmed by his lawyer, Harvey Silverglate, who claimed Eastman would be exonerated.[53]
• Co-conspirator No. 3: Trump lawyer Sidney Powell. CNN noted that the dates of a "lawsuit against the Governor of Georgia" mentioned in the indictment align with a lawsuit filed by Powell.[54]
• Co-conspirator No. 4: Trump lawyer Jeffrey Clark. CNN matched quotes of an email in the indictment with quotes from a Senate report.[54]
• Co-conspirator No. 5: Trump lawyer Kenneth Chesebro. CNN referred to information released by the House Select Committee on the January 6 Attack.[54][55]
• Co-conspirator No. 6: A "political consultant" who allegedly named attorneys in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin "who could assist in the fraudulent elector effort". On December 13, 2020, this person joined a phone call with Rudy Giuliani and a senior campaign advisor for Trump.[56]

Two United States Secret Service agents patrol in front of the courthouse before the arraignment.

Trump appeared before magistrate judge Moxila A. Upadhyaya at the E. Barrett Prettyman United States Courthouse in Washington, D.C., on August 3. Smith was present at the arraignment,[57] as were Trump lawyer Evan Corcoran and chief judge James Boasberg.[58] In the courtroom, Trump was joined by lawyers Todd Blanche and John Lauro; prosecutors Thomas Windom and Molly Gaston were joined by a special agent from the Federal Bureau of Investigation. Trump pleaded not guilty to each count, and prosecutors confirmed they would not seek pre-trial detention.[58]

Federal prosecutors requested a trial date of January 2, 2024. Trump's team countered with a request for April 2026.[59] Chutkan set trial for March 4, 2024.[60] Originally, all pre-trial motions were due by October 9. On September 28, Trump's attorneys requested a 60-day extension.[61][62] On October 6, Chutkan extended the filing deadline for motions to dismiss and other dispositive motions (except motions in limine and motions to suppress) until October 23.[63]

On August 4 and 5, the special counsel filed motions asking the court to restrict Trump from making public statements about the case and to impose a protective order on Trump and his attorneys to prevent them from revealing evidence (as they noted Trump has done in other cases). In particular, they cited social media posts on August 4 and 5 in which Trump threatened to retaliate against anyone who "comes after" him and called Pence "delusional". The Trump campaign characterized this as political speech that should be allowable.[64][65] When Chutkan would not grant the Trump team's request for an extra three days to respond, Trump attacked her on social media, demanding that she be removed from the case and that the case be moved out of the District of Columbia.[66] On August 7, Trump's attorneys requested a less restrictive order that would "shield only genuinely sensitive materials from public view," to which prosecutors replied that Trump sought "to try this case in the media rather than in the courtroom."[67] Chutkan scheduled a hearing for August 11.[68]

On August 8, Trump insisted he would continue to speak publicly about the case.[69] On August 10, Chutkan was spotted with the protection of U.S. Marshals, revealing an apparently increased level of security.[70] A Texas woman was charged the next week with leaving Chutkan a voicemail with racial and gender slurs in which she threatened: "Hey you stupid slave nigger ... If Trump doesn't get elected in 2024, we are coming to kill you, so tread lightly, bitch ... You will be targeted personally, publicly, your family, all of it."[71][72] At the August 11 hearing, Chutkan issued a less broad protective order than what was sought by prosecutors, who wanted to lock down all evidence turned over in discovery. The protective order allowed Trump to access certain non-sensitive information. She admonished Trump's attorneys that inflammatory public remarks by the former president would cause her to take measures to expedite the trial and prevent potential witness tampering and jury pool tainting. She emphasized that Trump's status as a criminal defendant had priority over his free speech as a political candidate.[73][74][75]

Chutkan ruled Trump could review materials alone, but only if his attorneys ensured he did not have any device that could copy them. A prosecutor told the court that once the protective order was in place, the special counsel expected to provide the defense about 11.6 million pages or files of materials by the end of August.[76] Court documents released on September 15 showed the special counsel previously asked Judge Chutkan in sealed briefs to impose a "narrowly tailored" gag order on Trump, asserting that since his indictment he "has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the court, prosecutors and prospective witnesses."[77] Smith filed another brief on September 29 regarding more recent derogatory remarks Trump had made about Brad Raffensberger, William Barr, and former Chairman of the Joint Chiefs of Staff Mark Milley, all of whom were identified as witnesses in the Trump indictment. Trump had on September 22 suggested that Milley should be executed for treason. The brief asserted, "No other criminal defendant would be permitted to issue public statements insinuating that a known witness in his case should be executed. This defendant should not be, either."[78][79]

On October 16, following a hearing, Chutkan granted a limited gag order.[80][81][82] The gag order prohibits all parties from making public statements targeting Jack Smith or his staff, the defense counsel or their staff, the judge or court personnel, and any potential witnesses or the substance of witness testimony with smears, intimidation, or harassment.[83][84][85] The gag order does not prohibit Trump from making statements criticizing the Biden administration, the Justice Department, the District of Columbia, other presidential candidates and their political platforms (including Mike Pence), and the conduct of the trial as being unfair or politically motivated.[83][84][85][82] Trump's attorneys filed an appeal of the gag order the next day that claimed that the order violated the Freedom of Speech Clause of the 1st Amendment,[86][87] and Chutkan issued a stay of the order on October 20.[88][89][90] On October 25, the prosecution filed a reply to the stay order that urged that the gag order be reinstated.[91][92]

On October 10, prosecutors recommended that the screening of potential jurors begin in early February. Acknowledging that this process will involve revealing jurors' identities to the legal teams, prosecutors recommended prohibiting attorneys from "friending" or "following" the social media accounts of potential jurors.[93] On October 24, ABC News reported that anonymous sources have stated that Trump administration White House Chief of Staff Mark Meadows has received legal immunity from Jack Smith in exchange for testimony under oath.[94] The next day, CBS News reported that anonymous sources have stated that Meadows is cooperating with prosecutors and has testified before the grand jury but did not state that Meadows has received legal immunity, while Meadows' attorney stated to CBS News that the ABC News report was "largely inaccurate".[95] In their October 25 reply to the gag order stay ruling, the prosecution did not address the veracity of the ABC News report and referred to Trump's October 24 Truth Social post about the news report as "an unmistakable and threatening message to a foreseeable witness in this case".[91][92]

During "full Ginsburg" interviews on August 7, new Trump attorney John Lauro asserted "a technical violation of the Constitution is not a violation of criminal law" so it was "just plain wrong" that Trump had pressured Pence to violate the law. Pence had said four days earlier that Trump and his advisers had pressured him "essentially to overturn the election."[96][97] On September 11, Trump asked Chutkan to recuse herself accusing her of "prejudging the facts pertinent to the case and his culpability".[98] On September 17, he repeated the request.[99] Chutkan denied the request ten days later.[100]

On October 5, Trump's attorneys filed a motion to dismiss the indictment citing presidential immunity under Nixon v. Fitzgerald (1982).[101][102][103] In allowing lawsuits filed by U.S. Representatives Bennie Thompson and Eric Swalwell and two U.S. Capitol Police officers against Trump to proceed for his conduct during the January 6 Capitol attack,[104][105] District of Columbia U.S. District Court Judge Amit Mehta ruled in February 2022 that presidential immunity did not shield Trump from the lawsuits.[106] As of October 2023, Mehta's ruling was on appeal before the U.S. District of Columbia Circuit Court of Appeals.[102][107] In an October 10 court filing, prosecutors said that Trump and his legal team had "repeatedly and publicly announced" that they would employ an "advice of counsel" defense, i.e., shifting blame to certain lawyers for advising Trump wrongly. Prosecutors asked Chutkan to order Trump to disclose by December 18 whether he intended to use this defense. This defense would require Trump to reveal communications and evidence related to his current and former attorneys, and he would thereby forfeit his assertions of attorney-client privilege. Prosecutors noted in the motion that at least 25 witnesses had asserted attorney-client privilege during the course of their investigation.[108]

On October 11, Trump's attorneys filed a motion for discovery based on claims made by U.S. Representative Barry Loudermilk that the House January 6 Committee did not turn over all of its evidence while the committee was under investigation by the House Administration Oversight Subcommittee.[109] The motion requested subpoenas be issued to Bennie Thompson (who chaired the January 6 House committee), Loudermilk, the House Administration Oversight Subcommittee, the Clerk of the House of Representatives, the Archivist of the United States, and White House and Department of Homeland Security attorneys.[110] On October 23, Trump's attorneys filed multiple motions to dismiss the indictment on grounds that it violates the Freedom of Speech Clause, violates the Double Jeopardy Clause of the 5th Amendment because of Trump's acquittal in his second impeachment trial, that the allegations are prejudicial and inflammatory, and that the indictment is a selective prosecution.[111][112]

The Trump campaign responded to the indictment with a press release, accusing President Joe Biden of political persecution and claiming that it was election interference.[113] The Trump campaign issued a statement calling the indictment "reminiscent of Nazi Germany", which was strongly criticized by Jonathan Greenblatt of the Anti-Defamation League, as well as the American Jewish Committee and the Jewish Democratic Council of America.[114]

• Mike Pence, who was Trump's vice president and is also running for the Republican nomination in the 2024 presidential election, issued a statement strongly condemning Trump, stating that this indictment was "an important reminder [that] anyone who puts himself over the constitution should never be president of the United States".[115] In an interview with reporters at the Indiana State Fair the next day, he expanded on his comments, stating that he could not have overturned the election results as vice president.[116]
• Former U.S. attorney general William Barr said the case against Trump was legitimate and that he will testify if he is called.[117]
• Adam Kinzinger, a member of the January 6 Committee and a former Illinois representative, tweeted that "Today is the beginning of justice" and added that Trump is "a cancer on our democracy".[118]
• Former New Jersey Governor Chris Christie, who is running for the 2024 presidential Republican nomination, said Trump "swore an oath to the Constitution, violated his oath & brought shame to his presidency."[119]
• Former Arkansas Governor Asa Hutchinson, who is running for the 2024 presidential Republican nomination, said "Trump has disqualified himself from ever holding our nation's highest office again."[120]
• On August 14, 2023, nearly a dozen former judges and federal legal officials, all appointed by Republicans, submitted an amicus brief saying they agreed with Jack Smith's proposed trial date of January 2, 2024.[121] The brief states "There is no more important issue facing America and the American people‍—‍and to the very functioning of democracy‍—‍than whether the former president is guilty of criminally undermining America’s elections and American democracy in order to remain in power [...]".[121]

• Ron DeSantis, the governor of Florida who is also running for the 2024 presidential Republican nomination, tweeted that he would "end the weaponization of government, replace the FBI director, and ensure a single standard of justice for all Americans" if elected. He also voiced agreement with the defendant's claim that the charges were politically motivated. In addition, DeSantis has previously expressed his intention to pardon Trump if he were to win the presidency.[122]
• Speaker of the House Kevin McCarthy wrote on Twitter that House Republicans would "continue to uncover the truth about Biden Inc. and the two-tiered system of justice."[123]
• With a looming September 30 deadline to fund the government for the coming fiscal year starting October 1, some House Republicans had proposed leveraging their power of the purse to try to stop the federal and state prosecutions of Trump, though a federal shutdown would not affect the prosecutions.[124]

• Senate Majority Leader Chuck Schumer in a joint statement with House Democratic Leader Hakeem Jeffries said "No one is above the law — including Donald Trump".[123]
• House members Nancy Pelosi, Joaquin Castro and Rashida Tlaib also came out in support of the indictment.[123]

• Bowden, Mark; Teague, Matthew (2022). The Steal: The Attempt to Overturn the 2020 Election and the People Who Stopped It. New York City: Grove Press. ISBN 978-0-802-15996-0.
• Leonnig, Carol; Rucker, Philip (2021). I Alone Can Fix It: Donald J. Trump's Catastrophic Final Year. New York City: Penguin Random House. ISBN 978-0-593-29895-4.