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Indictment—Department of Justice

On August 1, 2023, a grand jury convened by the U.S. District Court in Washington, D.C., issued a federal indictment charging Donald Trump with leading an illegal, multifaceted conspiracy to overturn the results of the 2020 presidential election—culminating (if not entirely ending) in the attack on the Capitol on Jan. 6, 2021.

Formally announced by Department of Justice (DOJ) Special Counsel Jack Smith, United States of America v. Donald J. Trump charges the ex-president with four felonies (two of which had also been recommended by the House Select Committee investigating the attack on the Capitol): obstruction of an official proceeding, conspiracy to defraud the U.S., conspiracy to obstruct an official proceeding, and conspiracy against rights, a Civil War-era statute designed to guarantee that all lawful votes are counted in a federal election.

“The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted and certified,” the indictment reads. It also charges Trump with attempting to steal the election himself by leading “a conspiracy against the right to vote and to have one’s vote counted.”

Smith has framed the DOJ case against Trump as one that cuts to a key function of democracy: the peaceful transition of power. He also emphasizes the former president’s role in orchestrating three conspiracies that culminated in the attempt to prevent Congress from ratifying the Electoral College outcome on January 6, 2021. “The attack on our nation’s capital… was an unprecedented assault on the seat of American democracy… fueled by lies—lies by the defendant targeted at obstructing” the electoral process, the special counsel said. He also argues that Trump clearly knew his claims about a stolen election were fabricated and that evidence shows he was willing to break the law in multiple ways to hold on to power, a point that could be important to convincing a jury to convict him.

The DOJ indictment mentions six co-conspirators without naming or charging any of them as part of the initial case. According to the descriptions provided, however, they are six of the lawyers who worked to help Trump hold on to power: Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, Kenneth Chesebro, and James Troupis. 

When Trump was arraigned on August 3, he pleaded not guilty to all charges while further making a mockery of the proceeding by almost immediately capitalizing on sales of his criminal mugshot. District Court Judge Tanya Chutkan originally set the trial date for March 4, 2024, and in September 2023, denied the defendant’s motion that she recuse herself from the case based on his assertions that she is prejudiced against him.

Since the arraignment, Trump has used his social media accounts to claim that Special Counsel Smith—who is also leading the DOJ investigation into the former president’s mishandling of classified documents after he left the White House—is “deranged” and part of a “team of losers and misfits” behind what he characterizes as a political “witch hunt” against him. The judge has repeatedly warned Trump against using “inflammatory” social media posts to intimidate witnesses or taint the potential jury pool, but his clear intention to continue to flout that warning led to a gag order in early November 2023 that was then temporarily paused pending an appeals court hearing.

In denying any wrongdoing, Trump and his attorneys considered multiple legal defenses, including that his First Amendment rights to free speech protected his activities; he sincerely believed he won and was simply attempting to protect his victory, with no criminal intent; he acted on the advice of counsel; and presidential immunity protects him from prosecution for the alleged crimes.

On Dec. 1, 2023, Chutkan rejected the presidential immunity argument, ruling that former presidents “do not possess absolute federal criminal immunity for any acts committed while in office” and that Trump “may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.” The same day the U.S. Court of Appeals for the D.C. Circuit also rejected the former president’s attempt to dismiss three civil cases brought against him in conjunction with his actions (and inaction) on Jan. 6.

Initially, prosecutors managed to shoot down Trump’s multiple motions to delay the start of the trial, but after Chutkan’s ruling in December, the case essentially ground to a halt as his lawyers challenged the decision and a series of D.C. courts reconsidered it before it landed where Trump wanted—at the Supreme Court. Once SCOTUS announces its ruling—which is expected to make a distinction between a president’s official versus private acts—the case is likely to go back to Chutkan to determine which of the DOJ charges stem from official acts and which qualify as private. That process may take weeks or even months to complete, making it highly unlikely that a trial will begin before the November election.

Although Trump had been expected to be on trial in three or four separate criminal cases in 2024, his lawyers have managed to indefinitely delay all but one: the New York hush money case in which a jury found him guilty of all 34 charges brought against him. When the verdict was announced in late May, his fundraising soared and followers and every Republican Party politician in the country rallied to his defense, doubled down on attacks on the prosecutor and jury, and parroted the former president’s outrage in proclaming that “justice is dead in America!”