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Human Rights and Global Wrongs
If you’re having trouble keeping track of the indictments — both current and future — against Donald Trump, you’re not alone. Trump has been indicted in New York state court for attempting to hide hush money payments to porn star Stormy Daniels, and in federal court for concealing classified national defense information at Mar-a-Lago. He faces hundreds of years in prison if convicted.
Additional indictments against Trump are reportedly forthcoming — one in federal court for his role in the January 6, 2021, insurrection, and another in Georgia state court for illegal interference in the 2020 presidential election.
In the event Trump wins the 2024 presidential election, he could probably make the federal indictments (and any federal convictions) go away, although a president has never pardoned himself. The presidential pardon power, however, does not extend to state offenses. That is why Trump’s lawyers tried (albeit unsuccessfully) to get the New York indictment moved to federal court.
Pending New York Indictment for Attempting to Hide Hush Money Payments to Stormy Daniels
Trump is facing charges in New York state court for falsifying business records to hide his adulterous behavior with Stormy Daniels from voters during the 2016 election.
On March 30, Manhattan District Attorney Alvin Bragg filed a 34-count indictment against Trump for “Falsifying Business Records in the First Degree.” The Statement of Facts accompanying the indictment says, “The defendant DONALD J. TRUMP repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.”
The indictment charges that Trump made false entries in business records “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof,” which violates Penal Law 175.10. He could receive a maximum of four years in prison for each count.
At Trump’s direction, his lawyer and fixer Michael Cohen paid $130,000 to Daniels. In addition, American Media, Inc. (AMI), which owned the National Enquirer, paid former Playboy model Karen McDougal $150,000. AMI was involved in a “catch-and-kill” operation in which it bought exclusive rights to McDougal’s story with no plans to actually publish it. The purpose was to prevent Daniels and McDougal from speaking publicly about their sexual relationships with Trump while he was married — “for the principal purpose of influencing the election.”
Judge Juan Merchan set the trial date for March 25, 2024. That is three weeks after Super Tuesday, when the largest number of states hold their presidential primaries.
Pending Federal Indictment for Concealing Classified National Defense Information
Special Counsel Jack Smith, appointed by Attorney General Merrick Garland, charged Trump with 37 counts for withholding, concealing and mishandling classified documents that contained national defense information.
The indictment, filed on June 8, charges Trump with 31 counts of willful and unauthorized retention of national defense information in violation of the Espionage Act. Each count carries a maximum of 10 years in prison.
For a conviction, the classified information must relate to the national defense and the defendant must have “reason to believe [that it] could be used to the injury of the United States or to the advantage of any foreign nation.” All except one of the 31 documents were classified at the “secret” or “top secret” level.
According to the indictment:
The classified documents TRUMP stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack. The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.
The indictment states that when he was no longer president, Trump showed a writer, publisher and two of his staff members who did not have security clearances some of the documents. Trump stated, “Look what I found, this was [the Senior Military Official’s] plan of attack, read it and just show . . . it’s interesting.”
During a meeting with a representative of his political action committee who did not have a security clearance, Trump “commented that an ongoing military operation in Country B was not going well.” He “showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close.”
The indictment also alleges that Trump suggested to his attorneys that they lie to the FBI and grand jury about turning over all documents he was legally bound to relinquish. Trump directed his longtime aide Walt Nauta to move several boxes to conceal them from Trump’s attorney, the FBI and the grand jury.
Trump is also charged with five counts of concealing possession of classified documents, including conspiracy to obstruct justice and withholding documents. He could receive a maximum of 20 years for each count.
And Trump is facing two counts of making false statements to the FBI. Each count carries a maximum of five years in prison.
Nauta is charged in six counts, five of which were also filed against Trump.
Although Trump’s lawyers tried to get an (unheard of) indefinite postponement of the trial until after the 2024 election (after which he could exercise a presidential pardon if he won), Judge Aileen Cannon turned them down. A Trump appointee, whose prior ruling in the case that favored Trump was overturned by an appellate court, Cannon set the trial date for May 20, 2024. That’s less than two months before the start of the Republican National Convention.
Due to the complexity of the issues, including operation of the Classified Information Procedures Act (CIPA), that date could be extended. CIPA governs the process for determining what classified information can be used in court and how. It will likely be the subject of numerous legal motions.
Forthcoming Federal Indictment for Election Fraud and January 6 Insurrection
On July 18, Trump revealed that the Department of Justice had served him with a “target letter” for three crimes related to January 6. They include Conspiracy to Defraud the United States (18 USC sec. 371), Obstruction of an Official Proceeding (18 USC sec. 1512), and conspiracy to deprive people of their rights (18 USC sec. 241). A target letter means that charges will invariably be filed.
While charges of conspiracy to defraud and obstruction were not unexpected , conspiracy against rights comes as somewhat of a surprise.
This law, now codified in 18 USC 241, was enacted during Reconstruction to enable federal prosecutions of southern whites, including members of the Ku Klux Klan, who committed terrorism to prevent formerly enslaved Black people from voting. It has recently been used to prosecute voting fraud conspiracies.
The conspiracy against rights statute makes it a felony for someone to “conspire to injure, oppress, threaten, or intimidate any person” in the “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” This crime is punishable by a maximum of 10 years in prison.
To support this charge, Special Counsel Smith could cite the illegal actions of Trump and his co-conspirators, including attorneys John Eastman and Rudy Giuliani, to pressure then-Vice President Mike Pence to violate his constitutional duty to certify the duly elected electors before the joint session of Congress. Smith could also invoke the actions and statements of Trump and his co-conspirators leading up to the January 6 insurrection.
The voters whose rights were threatened may include those who voted in states where Trump and his allies tried to submit false slates of electors, all voters who cast ballots for Biden, or everyone who voted in the election.
Conspiracy to Defraud the United States, which carries a maximum of five years in prison, would likely be based on Trump and his co-conspirators’ scheme to submit fake electors to Congress to change the results of the election. When they were unsuccessful in inducing Pence to block Joe Biden’s electors or delay the electoral count, they orchestrated an insurrection to prevent Congress from meeting in joint session and certifying Biden’s victory.
The crime of Obstructing an Official Proceeding, punishable by a maximum of five years in prison, can be supported by evidence of the submission of fake electors to interfere with the proper counting of the ballots. The pressure on Pence to violate his constitutional duty and stop the count or suspend the certification of the electors also supports the charge. As does the violent storming of the Capitol to obstruct the certification of the election.
In March 2022, U.S. District Court Judge David O. Carter found it “more likely than not ” that Trump and Eastman committed conspiracy to defraud the United States and obstructed an official proceeding. In addition, the bipartisan House Select Committee to Investigate the January 6th Attack on the United States Capitol made criminal referrals of Trump and his co-conspirators to the Justice Department for the same two crimes.
Forthcoming Georgia Indictment for Illegal Interference in the 2020 Election
Fulton County District Attorney Fani T. Willis in the Atlanta area has convened two grand juries to investigate efforts to overturn Biden’s win in the 2020 presidential election.
Willis began her investigation days after a recording of a January 2021 telephone call from Trump to Georgia Secretary of State Brad Raffensperger was made public. In the call, Trump urged Raffensperger to “find” enough votes to overturn Biden’s victorious vote tally in Georgia. Trump also called the head of Georgia state elections and asked her to find wrongdoing in the Georgia voting process.
In addition, prosecutors are examining the scheme to certify a slate of false electors to challenge the duly elected electors who gave Biden a majority in Georgia.
A special grand jury recommended indictments for more than 12 people — likely including Trump — after hearing seven months of evidence. It focused heavily on Giuliani, Eastman, former Trump chief of staff Mark Meadows, and Jeffrey Clark, a Justice Department official who tried to help Trump overturn the election results in Georgia.
On July 17, the Georgia Supreme Court unanimously rejected Trump’s motion to disqualify Willis and to suppress the special grand jury’s report recommending indictments.
The grand jury that is deliberating about whether to return indictments was empaneled in mid-July.
State charges that Georgia prosecutors are reportedly considering include solicitation to commit election fraud; conspiracy to commit election fraud; solicitation of a public or political officer to fail to perform their duties; and solicitation to destroy, deface or remove ballots. The acts solicited don’t have to have been completed; the crime is complete upon the solicitation.
Some of these state crimes could be folded into charges of racketeering, which requires proof of the existence of an “enterprise” and a pattern of racketeering activity based on two predicate crimes.
Willis has suggested that she will present a charging decision by August 18.
How Will Trump’s Indictments Affect the Election?
It’s too early to predict how indictments against Trump will affect the 2024 presidential election. Although his popularity appeared to rise after his first two indictments, the latest poll shows Trump’s favorability numbers declining.
FiveThirtyEight reports that Trump’s favorable numbers have gone down recently. As of July 23, about 58 percent of Americans regarded Trump unfavorably and only 39 percent viewed him favorably. He will probably retain much of his loyal base, but some may peel off as his criminal troubles mount.
Meanwhile, Citizens for Responsibility and Ethics in Washington (CREW) released a 90-page report concluding that Trump should be forbidden from holding office again because of his central role in the January 6 insurrection and his efforts to overturn the election results.
CREW cited Section 3 of the 14th Amendment, which prohibits anyone who has committed “insurrection or rebellion” or “given aid or comfort to the enemies of the United States” from holding elected office. In order to find that someone engaged in insurrection, the 14th Amendment doesn’t require a criminal conviction.
Although Trump’s pivotal participation in the January 6 insurrection constitutes “insurrection” sufficient to trigger Section 3 of the 14th Amendment, Congress as presently constituted is unlikely to disqualify him from holding office again. It would require a majority vote of both houses of Congress.
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