What to Expect With the Jan. 6 Grand Jury Investigation Into Trump

Republican presidential candidate and former U.S. President Donald Trump leaves the stage after delivering remarks the North Carolina Republican Party’s annual state convention in Greensboro, N.C., on June 10, 2023. (Win McNamee/Getty Images)

When former President Donald Trump revealed on social media he was a target of the Department of Justice’s probe into the Jan. 6, 2021 events and asked to come before a grand jury, he wrote it “almost always means an Arrest and Indictment.”

Many expect the same; a Harvard University CAPS/Harris poll conducted July 19–20 (pdf) found that 57 percent of voters thought federal prosecutors had a strong criminal case against the former president, even while no official charges have been confirmed.

John O'Connor, an attorney and former federal prosecutor, said the most “troublesome” of potential charges for Mr. Trump would be the obstruction of an official proceeding as it pertains to 18 U.S. Code § 1512.

“There are two aspects of this, one is witness tampering,” he told The Epoch Times. This can involve “keeping somebody from testifying, or changing their testimony by pressure or by misleading conduct,” but the statute also “prohibits interfering with an official proceeding or obstructing the official proceeding corruptly.”

“Obstruction” only requires to have endeavored to do so, whether the attempt was successful or not, Mr. O'Connor said, while “corruptly” means the defendant would have had to have a dishonest or bad intent.

“What’s corrupt intent? In Indiana, for example, the jury might look at what Trump did as democratic intent. He was trying to preserve democracy. That’s what it would look like in the Heartland. But in Washington D.C., with 90 percent Democratic registration and a very partisan atmosphere, I think it could well be, especially with the right instructions from the judge, that the jury might see him as having corrupt intent,” Mr. O'Connor said.

As for obstruction, Mr. O'Connor said it was also likely to be interpreted through a partisan lens.

“There’s no doubt that he tried to delay the proceedings. Is that obstructing them? Let’s look at the vote on Brett Kavanaugh. His confirmation was delayed as various people pressured, for instance Senator Jeff Flake, to try to postpone the hearings, and he did so. Is that obstruction? People would say no, it’s citizens exercising their democratic rights and really just petitioning their representatives to do what they want,” he said.

“You can look at this two separate ways, but I think the prosecution is going to say that Trump obstructed the proceedings by getting Pence not to count the votes,” Mr. O'Connor said. “I think that’s the most dangerous charge for him.”

A person close to Mr. Trump’s legal team familiar with the legal preparation for the investigation said an indictment wouldn’t hamper Mr. Trump’s campaign nor help President Joe Biden’s campaign as much as one might expect, and not just because the last two indictments saw Mr. Trump rise in the polls. If indicted, Mr. Trump’s team will be able to subpoena members of Mr. Biden’s team as well as state officials in the contested states “to get to the truth of what happened in the 2020 election.”

“If they indict him, then the barn door is open,” they said.

Cases, Timing, and the Campaign

If an indictment is coming, it should happen soon, Mr. O'Connor said. He is of the opinion that the Jan. 6 investigation will occur before the primaries, and if it costs Mr. Trump any votes they will be from the middle—the independents, moderate Republicans who were on the fence about Mr. Trump to begin with, and moderate Democrats who don’t want Mr. Biden back in office. Yet, that narrow margin will begin to matter in the general elections.

“I don’t think January 6 will change anybody’s mind among his core followers, that case can be made to look like it’s partisan,” Mr. O'Connor said. “The charges that will not look partisan are counts 32 to 37 in the present Mar-a-Lago indictment.”

“I think many people that are Trump supporters do not realize how good these charges are, on the Mar-a-Lago on those six counts,” he said, adding that he thinks the first 31 counts are much weaker and do look partisan.

Counts 32–37 are (pdf) conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document or record, concealing a document in a federal investigation, scheme to conceal, and false statements and representation.

Given that there is security video footage of the boxes being moved and emails about the timing of when Mr. Trump’s lawyer was to come examine the documents, “I was a prosecutor myself and I prosecuted these cases, this is about as strong as it gets,” Mr. O'Connor said. “It’s very hard to say that Trump didn’t know exactly what had happened here.”

But the timing of these cases means that all of this will unravel in public view in May 2024, “in the middle of the general election,” Mr. O'Connor said. He thinks the outcome of the Mar-a-Lago case may indeed change voters’ minds, including supporters of Mr. Trump, but by then the primaries have long ended. Yet, Mr. Biden is facing his own legal challenges. “It’s very, very hard to predict exactly how this dynamic is going to happen ... I don’t think there’s ever been an election in which the two leading candidates are so flawed by legal liabilities.”