Key Takeaways from Trump Jan. 6 Indictment

Former U.S. President Donald Trump speaks to supporters during a political rally while campaigning for the GOP nomination in the 2024 election at Erie Insurance Arena in Erie, Pa., on July 29, 2023. (Jeff Swensen/Getty Images)

The latest indictment against former President Donald Trump alleges he engaged in criminal conspiracies connected with his attempts to challenge the results of the 2020 election.

While Special Counsel Jack Smith in the indictment acknowledges Mr. Trump had the right to publicly claim election fraud and challenge the results through “lawful” means, the prosecutor charges that the former president’s actions went into unlawful territory.

The four-count indictment (pdf) accuses Mr. Trump of conspiracy to defraud the United States, conspiracy to obstruct the Jan. 6 certification of votes, and conspiracy against the right to vote. The first count carries a maximum sentence of five years in prison, the second and third counts each carry a maximum 20-year prison sentence, while the final count has a 10-year maximum sentence.

"The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud," the indictment alleges.

The 45-page indictment also names six unnamed "co-conspirators." While unnamed, five of those individuals can be identified based on descriptors and context: Rudy Giuliani, Mr. Trump’s former attorney, lawyers John Eastman, Sidney Powell, and Kenneth Cheseboro, and Jeffrey Clark, a former DOJ civil attorney.

Allegations of Knowledge of ‘False Claims’

Mr. Smith alleges the former president and his co-conspirators made a series of “knowingly false claims” about election fraud. The indictment references specific claims by Mr. Trump and his allies of voter fraud in states such as Georgia, Pennsylvania, Michigan, and Arizona.

In support of the allegation that Mr. Trump knew these claims to be false, the indictment lists multiple instances where officials and advisors told the then-president that “his claims were untrue.”

Those people included his senior campaign staffers, state lawmakers, Vice President Mike Pence, senior White House attorneys, DOJ leaders, Director of National Intelligence John Ratcliffe, and the Cybersecurity and Infrastructure Security Agency (CISA), whose director Mr. Trump fired after he publicly announced that election-security experts believed that the fraud claims were “unsubstantiated.”

Trump lawyer John Lauro pushed back against the allegation that the former president was knowingly telling lies about the election.

“I would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations were false,” Mr. Lauro told Fox News on Tuesday.

“What did he see in real-time? He saw changes in election procedure in the middle of the game being carried out by executive-level—people at the state level, election officials, but not the state legislatures.”

Alternate Electors Plan

The indictment also took aim at a plan adopted by Mr. Trump’s team in December 2020 to submit a slate of alternate electors in seven states where the election results were disputed.

The goal of the plan, according to the indictment, was to “create a fake controversy at the certification proceeding and position the Vice President—presiding on January 6 as President of the Senate—to supplant legitimate electors with [Mr. Trump’s] fake electors and certify [Mr. Trump] as president.”

The strategy evolved from ideas detailed in a Nov. 18 memo drafted by Trump attorney Kenneth Chesebro—identified as co-conspirator 5—relating to recount efforts in Wisconsin, according to the indictment. But the plan evolved in December to include six other “contested” states—Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin.

In a Dec. 8 email by an Arizona attorney who had just been verbally briefed by Mr. Chesebro about the plan, the attorney describes his conversation as follows.

“[Mr. Chesebro’s] idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren’t legal under federal law – because they’re not signed by the Governor); so that members of Congress can fight about whether they should be counted on January 6th.

“(They could potentially argue that they’re not bound by federal law because they’re Congress and make the law, etc.) Kind of wild/creative”

He adds: “My comment to him was that I guess there’s no harm in it, (legally at least) – i.e. we would just be sending in “fake” electoral votes to Pence so that “someone” in Congress can make an objection when they start counting votes, and start arguing that the “fake votes should be counted.”

Mr. Lauro, Trump’s lawyer, disputed the illegality of the approach.

“[Mr. Trump] had an advice of counsel, a very detailed memorandum from a constitutional expert who said: Mr. President, these states are complaining about what happened. You, as the executive, have the ability to ask Vice President Pence to pause the vote on Jan. 6, have these states audit and recertify, and, that way, we know ultimately who won the election,” Mr. Lauro said on Fox News.

“And that's the only thing that President Trump suggested. There's nothing unlawful about that. He was entitled to do that, as the chief executive officer carrying out the laws, and nothing about that was obstructive.”

Pence

The defendant and co-conspirators on several attempts tried to “enlist” Mr. Pence to use his “ceremonial role” to “fraudulently alter the election results," the indictment states.

Mr. Pence refused to go along. In one conversation with Mr. Trump on Jan. 1, 2021, when the then-president claimed the vice president had the authority to reject or return votes to the states under the Constitution, Mr. Pence “responded that he thought there was no constitutional basis for such authority and that it was improper,” the documents states. Mr. Trump then told Mr. Pence, “You’re too honest.”

After Mr. Pence repeatedly refused in private to send the electoral votes back to the states, Mr. Trump continued to publicly state that the vice president had the power to do so and “raised publicly the false expectation” that Mr. Pence might do so on Jan. 6, the indictment states.

Mr. Pence, who is now a candidate for the presidency, trailing far behind Mr. Trump in the polls, issued an initial statement on Tuesday, saying that the indictment "serves as an important reminder: anyone who puts himself over the Constitution should never be president of the United States." Although he said Mr. Trump is "entitled to the presumption of innocence," his candidacy "means more talk about January 6th and more distractions."

The indictment also alleges Mr. Trump “attempted to exploit the violence and chaos” at the Capitol on Jan. 6 by calling lawmakers that evening and trying to convince them to delay the certification.

To Mr. Lauro, Trump’s attorney, the former president’s efforts to challenge the election results on Jan. 6 were not criminal

“What President Trump was raising when he asked Vice President Pence to send it back to the state legislatures was to give the legislature in each state of those contested states one last chance to make a determination, because the reality is that the state legislatures in every state has the ultimate responsibility ability for qualifying electors,” Mr. Lauro argued.

“So, what Mr. Trump did was exactly constitutionally precise and in order. There was nothing illegal about that. And he was required to take steps as president of the United States to ensure that that election was held in a valid way.”