Analysis: What prosecutors will need to prove if they indict Trump for trying to steal the 2020 election


JULY 19, 2023

The current front-runner for the Republican nomination for president could soon be indicted by federal prosecutors for trying to steal the 2020 election. For weeks after Joe Biden was declared the winner and states certified their results in 2020, Donald Trump repeatedly claimed that the election had been rigged. Advisers repeatedly told him there was no basis for his false assertions of massive voter fraud or widespread election irregularities.

But in a Truth Social post Tuesday morning, buried deep under a heap of recriminations, the former president laid out the seeds of what will likely become his defense: “I have the right to protest an Election that I am fully convinced was Rigged and Stolen.” Former federal prosecutors tell NBC News that a good faith belief he won the election should not be a winning legal argument, but it could derail a prosecution if a jury goes for it.

Here’s what we know, what we still need to know, and what to watch for next as Trump’s latest legal entanglement unfolds.

How soon could Trump be indicted?

Unclear. When Trump was informed this spring that he was the target of the special counsel’s investigation into his handling of classified documents, he was indicted roughly three weeks later. It’s not known how much more evidence prosecutors plan to present to the grand jury in Washington, D.C., that is hearing the case about his efforts to overturn the election. Often in high-profile cases defense attorneys also try to meet with prosecutors to argue why their client shouldn’t be indicted. It’s unclear if that meeting has been requested or will happen in the 2020 election case.

What are the possible charges?

Unlike the classified documents probe, this special counsel investigation is sprawling. It involves all of Trump’s alleged efforts to unlawfully cling to power and overturn the election results. But the actual criminal charges might be more narrowly tailored. NBC News has confirmed the target letter the Justice Department sent Trump’s attorneys Sunday referenced three criminal statutes, according to two sources with knowledge of the letter. Prosecutors aren’t limited to charging only the statutes cited in the letter, but it provides a  road map of where the case is likely headed, especially since it was sent recently.

The target letter mentions statutes for conspiracy to defraud the United States, tampering with a witness, and deprivation of rights under color of law. It’s worth noting, however, that while that second statute, 18 USC § 1512, is titled “Tampering with a witness, victim, or an informant,” it covers a much broader set of scenarios, including obstructing “any official proceeding.” That’s one of the main charges the Justice Department has used in the Jan. 6 cases against the rioters who attacked the Capitol, and it may be the one the former president faces.

The conspiracy to defraud the United States statute, 18 USC § 371, may also relate to his alleged interference with the election certification process in Congress.

If prosecutors charge Trump with depriving someone of their constitutional rights, 18 USC § 242 could be the relevant statute. Precisely whose rights were allegedly deprived in this case is not known.

What is Trump’s likely defense?

What Trump is defending against is hard to unpack without knowing the precise criminal charge he faces. But already he and his allies have been pressing the claim that Trump was operating under a genuine, good faith belief that the election was stolen from him. Even if that belief were theoretically true, former federal prosecutors say, it isn’t a persuasive legal defense.

“Just because you believe your cause is righteous doesn’t mean you get to break the law for it,” former federal prosecutor Randall Eliason, now a professor at George Washington University Law School, told NBC News.

In other words, if Trump and others knew that the means they were using to overturn the election were dishonest or deceptive, it wouldn’t matter if they believed the cause was justified.

At the same time, the more evidence prosecutors can present to jurors that Trump had been told that he lost the election — and should have known that he lost, but pressed ahead with bogus claims anyway — will bolster prosecutors’ case.

“To the extent that prosecutors can prove [Trump] knew he lost, it makes the case that much more compelling,” Eliason added.

If the Justice Department charges Trump with obstructing the congressional vote certification, under 18 USC § 1512(c)(2), prosecutors will be required to show he had a “corrupt” purpose or used corrupt means. How?

A federal judge’s ruling last year on this point is instructive. The Jan. 6 committee wanted to get documents from John Eastman, the law professor and architect of the plan to overturn the 2020 election. Eastman tried to argue that the documents were protected by attorney-client privilege with Trump, but a federal judge in California disagreed. As a part of his ruling, the judge, David Carter, found it was “more likely than not” Trump committed crimes.

“Because Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting ‘corruptly,’” wrote Carter — pointing to the litany of people who advised Trump that he lost the election and there was no evidence of widespread fraud.

No matter what, a jury would need to evaluate the facts and evidence the Justice Department has gathered.

Could others be charged?

Yes. NBC News has reported several key advisers and lawyers in Trump’s orbit, including Rudy Giuliani, John Eastman and Steve Bannon, have not received target letters. Prosecutors are not required, however, to send a target letter before seeking an indictment. It’s also possible any individual who has agreed to cooperate with prosecutors would no longer be considered a target of the investigation.

What happens now?

Once prosecutors finish presenting evidence to the grand jury, they will seek an indictment. The grand jury will be instructed on the law, vote, and if a majority decides to indict, it’s done. However, as in the classified documents case, the public wouldn’t see the indictment right away. It would remain under seal until the Justice Department gets an order from a federal judge to unseal it. In the meantime, as in previous cases, Trump’s defense team would likely be informed the former president has been indicted and he may receive a summons to turn himself in for arraignment.

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