In the special counsel’s accusation of former President Donald J. Trump for conspiring against American democracy, there is a clever and strategic approach. Jack Smith, the special counsel, has charged Trump with three different versions of the same story, utilizing novel interpretations of criminal laws in unprecedented circumstances. This approach not only increases the legal risks for Trump but also provides multiple avenues for securing a guilty verdict.
According to legal experts such as Julie O’Sullivan, a Georgetown University law professor, having multiple charges applicable to the same evidence is essential in a case like this. It safeguards the conviction, even if one charge is overturned during the appeals process.
Smith’s indictment demonstrates various strategic choices that may shape the eventual trial of Trump. The indictment selectively focuses on Trump’s efforts to overturn the 2020 election, specifically the recruitment of false electors and the pressure campaign on Vice President Mike Pence to block the certification of Joseph R. Biden Jr.’s victory. By avoiding charges of inciting an insurrection or seditious conspiracy, Smith avoids potential First Amendment objections that defense lawyers could raise.
The indictment also refrains from charging Trump’s associates, leaving open the possibility of future indictments if they fail to cooperate. This approach may expedite the case against Trump.
One of the charges brought against Trump, corrupt obstruction of an official proceeding, is already familiar in the context of the aftermath of the 2020 election. However, there is some concern that the Supreme Court’s interpretation of this charge in the cases of the January 6th rioters may impact Trump’s case.
Proving Trump’s intent in making false claims of voter fraud is crucial to the case. While it would be easier to secure a conviction if jurors believe Trump knowingly lied about everything, experts agree that it is not necessary to prove that level of intent. The indictment presents instances in which Trump had firsthand knowledge that his statements were false, which can be used to infer his intent in other instances.
The indictment also argues that Trump’s belief in the stolen election does not negate his consciousness of wrongdoing. Judges have already rejected similar arguments from the January 6th rioters, stating that belief in serving a greater good does not excuse unlawful actions.
Proving Trump’s intent will be key to the charges of defrauding the government and disenfranchising voters. However, these charges do not require the same heightened standard of “corrupt” intent as the obstruction statute. Court rulings have established that evidence of deception or dishonesty is sufficient in cases of defrauding the government.
Overall, Smith’s indictment strategically lays out a case against Trump, focusing on specific actions and avoiding potential legal pitfalls. It remains to be seen how these strategic choices will shape the trial and the outcome.
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