The Elements of Offense in the Trump January 6 Indictment

In the last day, Maggie and Mike and Devlin and Dawsey came out with twin pieces that purport to assess the legal strength of the indictment against Trump, but instead simply say, “well, Trump believes his bullshit and so do we and so the charged conduct may be First Amendment protected.”

Neither of these articles even mention that 18 USC 371, conspiracy to defraud the US, is about lying to the US, even though one of the lawyers cited by WaPo attempted to explain that to them.

Here’s why all those claims that Trump knew he was lying are in the indictment: because his false claims were the means Trump used to carry out the conspiracy to defraud.

The Defendant widely disseminated his false claims of election fraud for months, despite the fact that he knew, and in many cases had been informed directly, that they were not true. The Defendant’s knowingly false statements were integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others’ right to vote and have their votes counted. He made these knowingly false claims throughout the post-election time period, including those below that he made immediately before the attack on the Capitol on January 6:

This indictment will be measured not by what Maggie and Mike and Devlin and Dawsey claim about legal statutes they haven’t bothered to explain.

It will be measured by whether the government presents evidence to prove the elements of offense for each charge beyond a reasonable doubt.

Here, in abbreviated form, is what the elements of the offense are for the four charged crimes, which is what the jury will be given to judge the former President’s crimes. DOJ will need to prove that Trump entered into three parallel conspiracies with his alleged co-conspirators, then show that they attempted to:

  • Use deceit to undermine the Electoral College Act
  • Prevent the certification of the Electoral votes on January 6
  • Prevent the Biden voters votes in swing states from being counted


Trump is charged with conspiring with six people: Rudy Giuliani (CC1), John Eastman (CC2), Sidney Powell (CC3), Jeffrey Clark (CC4), Kenneth Chesebro (CC5), and either Boris Epshteyn or Mike Roman (CC6). DOJ did this because to prove the case against Trump, it plans to introduce the words and actions of each of these six people as co-conspirators. To admit that as evidence, DOJ will need to convince Judge Tanya Chutkan that Trump entered into an agreement with each of them to carry out the goal of each of three conspiracies, which are:

  • 18 USC 371: 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 government function Trump is accused of seeking to thwart with all his lying is the Electoral Count Act, the means by which the government ascertains the winners of each state’s electoral college votes.
  • 18 USC 1512(k): The purpose of the conspiracy was to corruptly obstruct the vote certification on January 6.
  • 18 USC 241: The purpose of the conspiracy was to prevent people’s votes from being counted, probably best defined as the Biden voters whose votes made him the winner of swing states, with Georgia, Michigan, Nevada, Pennsylvania, and Arizona mentioned explicitly.

The government doesn’t have to prove that all seven of these people sat in a room and made an agreement on November 14, the day after Trump’s campaign conceded Arizona, which is when the alleged conspiracies began. Nor does it have to prove they entered into an explicit agreement. They just need to prove that each of these people agreed to pursue the goal of each conspiracy.

The kinds of things the government will use to prove the co-conspirators joined this conspiracy are:

Rudy: The government will show that on November 14, Rudy took over Trump’s efforts to contest the vote (remember that DOJ subpoenaed whatever legal arrangement he had with Trump, but note that Special Master Barbara Jones appears to have found none of Rudy’s post-election plotting to be privileged). It will show that, acting on Trump’s instructions, Rudy repeatedly contacted both state officials and members of Congress to assert fraud that even he admitted he had no evidence for. “We don’t have the evidence, but we have lots of theories.” It will show that Trump repeatedly publicly ratified Rudy’s lies, often by Tweeting the claims Rudy made, and often by pushing them both with state officials he was personally trying to pressure, but also with US government officials, including DOJ.

John Eastman: The government will show that as Trump tried to find some justification for stealing the election, he turned to Eastman to give it legal cover. It will point to things like the Georgia lawsuit certification Trump signed on December 31 that Eastman acknowledged included false data. It will show Eastman’s calls in support of fake electors. It will rely heavily on the meetings Eastman personally attended in the days leading up to January 6. It will show that Trump decided, after being told repeatedly that Mike Pence wouldn’t throw out the votes, to have Eastman (as well as Rudy) speak at the Ellipse rally.

Sidney Powell: As I noted in this post, the role of Powell as alleged in the conspiracy is actually quite narrow. The indictment shows that on November 16, Trump asked Powell and others to use the Dominion voting machine allegations in lawsuits, and starting on November 25, she did so. Trump ratified her actions, even though Rudy had publicly split from her, on Twitter. One of the lies the indictment claims Trump knowingly told — in addition to very specific lies about swing states he repeated in his Ellipse speech — pertains to the voting machines, and to prove that lie, the government will show Trump knew Powell was batshit crazy but didn’t care.

Jeffrey Clark: The government will show that, starting on December 22, after Bill Barr, Jeffrey Rosen, and Richard Donoghue all debunked Trump’s false claims, Clark had secret communications with Trump that violated DOJ’s contact policy. As a result of those secret communications, Clark drafted a letter he attempted to coerce Rosen and others to sign, endorsing the fake elector scheme. Trump endorsed his actions by attempting to (and briefly at least, in fact replacing) Rosen with Clark so Clark could, “use the authority of the Justice Department to falsely present the fraudulent electors as a valid alternative to the legitimate electors.”

Kenneth Chesebro: The government will show that, acting at the direction of people acting for Trump, Chesebro wrote a series of increasingly radical memos laying out how each swing state ascertained electors and describing how fake electors could attempt to comply with those laws, even while acknowledging that in several states they couldn’t meet the legal requirements. (Here’s the J6C Report on the memos.) The government will show that Chesebro entered into the conspiracy via communications with Rudy and, later, Eastman, not directly with Trump.

Co-Conspirator 6: It’s not yet certain whether CC6 is Boris Epshteyn or Mike Roman. Whoever it is, DOJ will show that CC6 played a key role in recruiting people to implement the fake elector scheme and then was involved in Rudy’s attempts to persuade members of Congress to reject the swing state electoral certificates.

Conspiracy to Defraud the United States

Assuming DOJ can convince Judge Chutkan that each of these people entered into a conspiracy with Trump, it will then use his own actions and theirs to prove the elements of offense for each of the charged conspiracies.

For 18 USC 371, the government needs to prove that Trump and his co-conspirators attempted to use deceit to pretend that Trump had won 306 electoral college votes, rather than Joe Biden. This statute is why the discussion of all the lying is in there.

Notably, assuming Chutkan agrees these are all co-conspirators, DOJ won’t have to rely entirely on Trump’s lies. They’ll also rely on:

  • Rudy’s admission to Rusty Bowers they had no evidence to back their claims
  • Eastman’s admission to Mike Pence his claims about ECA were untested, and his admission to Greg Jacob that SCOTUS would reject them
  • Trump’s description of Sidney Powell’s claims as crazy
  • Jeffrey Clark’s attempts to deceive his bosses about what he was doing with Trump
  • Kenneth Chesebro’s admission that the fake electors in several states could not comply with the law

As I have laid out, DOJ has set up 5 specific lies that Trump recycled in his Ellipse speech after having them repeatedly debunked by Republicans, along with the voting machine lies Sidney Powell told. They have also laid out that Trump lied about what Pence had just told him (and there are contemporary witnesses that it happened before Trump made his false claims about Pence).

Even if jurors believed Trump believed his own bullshit about some or all of the claims about fraudulent votes, DOJ would still have Trump’s lies about Dominion voting machines and Pence to prove that he knowingly defrauded the US.

Obstruction of the Vote Certification

As I have repeatedly noted, for both obstruction counts (charged as a conspiracy and against Trump alone), dozens of other January 6 defendants have already tried the defense that Maggie and Mike and Devlin and Dawsey present (and not for the first time by Maggie and Mike) as if Trump would be making it for the first time.

It didn’t work. I will link, once again, Royce Lamberth’s recent findings of fact in the Alan Hostetter case in the futile hope that Maggie and Mike and Devlin and Dawsey might decide to learn how this statute has already been applied in hundreds of January 6 cases.

To prove that Trump (and his co-conspirators for the 1512(k) charge) obstructed the vote certification, DOJ will need to:

  • Prove that Trump knew the significance of the vote certification (possibly both the December 14 and January 6 ones). DOJ will point to both the effort to get fake elector certificates created on December 14, and Trump’s publicity of January 6 and his repeated public claims that unless Pence intervened, he wouldn’t be President anymore.
  • Prove that Trump took steps to obstruct the certification of the votes. DOJ will point to the pressure on Mike Pence, both covertly in meetings leading up to January 6 and overtly after Pence told Trump he would not reject the certifications. DOJ will also point to things Trump did to ensure that a mob of bodies physically occupied the Capitol, and after they had ,refuse to take steps in response to requests from people like Kevin McCarthy and Pat Cipollone to get them out of there.
  • Prove that Trump had a corrupt purpose in doing all this. As I keep saying, what the standard for corrupt purpose will be is being decided as we speak by the DC Circuit (and yesterday, the effective solicitor general for the mobsters filed for cert at SCOTUS in an attempt to preempt the DC Circuit). It will be some combination of the following:
    • Otherwise illegal acts: DOJ would prove that Trump violated the law to obstruct the vote certification by looking at the fake elector plot and the knowingly illegal order to Pence.
    • Corrupt personal benefit: Among the hundreds of people charged with obstruction, this definition of corrupt purpose is probably easiest to prove for Trump, because he was attempting to remain President after being fired by voters. This is one area where Trump’s awareness that he lost might matter, but ultimately, the Lamberth decision would lay out that even if Trump really believed he won, the means he used to prevent Biden’s vote from being certified were corrupt.

Conspiracy to Prevent Biden’s Voters Votes from Being Counted

After laying out the elements of offense for joining a conspiracy, the jury instructions in the Douglass Mackey case used the following language for the objective of the conspiracy.

The indictment alleges that the objective of the charged conspiracy was to injure, oppress, threaten or intimidate one or more persons in the free exercise and enjoyment of their right to vote. The government must therefore prove beyond a reasonable doubt that the defendant knowingly and intentionally joined the conspiracy with the intent to further that objective. In this case, the government has alleged that the object of the conspiracy was specifically to “injure” one or more persons in the free exercise and enjoyment of their right to vote. I instruct you that the statute covers conduct intended to “obstruct,” “hinder,” “prevent,” “frustrate,” “make difficult or impossible,” “or indirectly rather than directly assault” free exercise of the right. For example, “hinder” is defined as “to make slow or difficult the progress of, to hamper, to hold back, to prevent, to check.”

It does not require the possibility of physical force or physical harm. Thus, conduct that makes the right to vote more difficult, or in some way prevents voters from exercising their right to vote can constitute an “injury” within the meaning of the law.

Here, the object of the conspiracy was twofold: to prevent people from voting, but also to prevent their votes from being counted.

Curiously, the timeline on this conspiracy only starts at November 14, after all the votes were cast.

The indictment notes several instances where Trump intimidated people counting the vote, mentioning the death threats that he caused Al Schmidt and Ruby Freeman and Shaye Moss to suffer. It explicitly states that Trump, “attempted to use a crowd of supporters that he had gathered in Washington, D.C., to pressure the Vice President to fraudulently alter the election results.” It describes how the lies (as well of those from Eastman and Rudy) in his Ellipse speech:

gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification

It describes how, after being told of the riot, Trump further inflamed the crowd with a tweet targeting Pence the minute before Pence was evacuated for his safety (thereby shutting down the vote count). It describes how Trump refused the requests of Pat Cipollone, Pat Philbin, Mark Meadows, a Deputy Chief of Staff (possibly Tony Ornato), and Eric Herschmann to tell the rioters to leave. It describes how Trump refused Cipollone’s request that he withdraw his objections to the vote certification.

The comments and actions of both Rudy and John Eastman also nakedly show that the intent was to prevent Joe Biden’s votes from being counted.

163 replies
  1. David F. Snyder says:

    From Greg Sargent at WaPo.

    “That’s the only thing that President Trump suggested,” Lauro said, adding that everything Trump attempted “was done with lawyers giving him advice.” Lauro repeated this on NBC’s “Today” show, insisting Trump is “entitled” to “trust advice of counsel.”

    https ://

    • Greg Schorr says:

      He knew it was a lie. From the indictment:

      “a. The Defendant’s Vice President—who personally stood to gain by remaining in office…told the Defendant that he had seen no evidence of outcome-determinative fraud.

      b. The senior leaders of the Justice Department—appointed by the Defendant and responsible for investigating credible allegations of election crimes—told the Defendant on multiple occasions that various allegations of fraud were unsupported.

      d. The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”)—whose existence the Defendant signed into law to protect the nation’s cybersecurity infrastructure from attack—joined an official multi-agency statement that there was no evidence any voting system had been compromised and that declared the 2020 election “the most secure in American history.” Days later, after the CISA Director—whom the Defendant had appointed—announced publicly that election security experts were in agreement that claims of computer-based election fraud were unsubstantiated, the Defendant fired him.

      e. Senior White House attorneys—selected by the Defendant to provide him candid advice—informed the Defendant that there was no evidence of outcome-determinative election fraud, and told him that his presidency would end on Inauguration Day in 2021.

      f. Senior staffers on the Defendant’s 2020 re-election campaign (“Defendant’s Campaign” or “Campaign”)—whose sole mission was the Defendant’s re-election—told the Defendant on November 7, 2020, that he had only a five to ten percent chance of prevailing in the election, and that success was contingent on the Defendant winning ongoing vote counts or litigation in Arizona, Georgia, and Wisconsin. Within a week of that assessment, the Defendant lost in Arizona—meaning he had lost the election.

      g. State legislators and officials—many of whom were the Defendant’s political allies, had voted for him, and wanted him to be re-elected—repeatedly informed the Defendant that his claims of fraud in their states were unsubstantiated or false and resisted his pressure to act based upon them.

      h. State and federal courts—the neutral arbiters responsible for ensuring the fair and even-handed administration of election laws—rejected every outcome-determinative post-election lawsuit filed by the Defendant, his co-conspirators, and allies, providing the Defendant real-time notice that his allegations were meritless.”

      All emphasis mine.

      • Peterr says:

        Your point h. is the big one here, as I look at it.

        All these judges ruled that the claims brought before them were without merit, from low-level state and federal judges up to state and federal Supreme Court justices. Some were withdrawn (i.e., don’t bring your unfinished homework to me), others were thrown out (i.e. you’ve got to be kidding me), and still others found to be without merit after a full examination. All these courts gave not just legal advice but binding conclusions of law that Trump and his team were full of hot air.

        And yet, Trump still listened to CC-1 through CC-6? Please.

        • Rayne says:

          IIRC, there were 62 out of 63 cases which went against Team Trump. Not the kind of statistics one should bet against. Marc Elias had a tally at, I’ll have to find it for the accurate current total.

        • Marc in Denver says:

          It’s been a while, but IIRC, the one “victory” allowed observers to be 6 feet away from the vote counters, rather than 10…. A massive victory, I say /s

        • Wajimsays says:

          Ha! That will be DJT’s last act: [Sentencing day, Federal Court: Hand on chest, staggering, looking toward the sky]: “Now you went and did it . . . never had pains like this before . . . hear that [Fred Sr?] I’m comings to join you Dad!” ( Lord, are we both that old, b?)

        • Cargill2 says:

          The standard pro-Trump /right-wing argument is that many of the 62 cases were brusquely thrown out on technical process grounds (the applicants had ‘no standing’, or the paperwork was not totally correct), and had the ‘ample’ evidence been properly examined, then the fraud in the swing states would have been proved.

          This position is still being held, with Trump’s lawyer stating that they’re going to spend the next couple of years litigating all the fraud claims that were thrown out, by introducing evidence, testimony, and witnesses.

          I guess we’ll see how well that goes. But it seems to me that even if three or four swing states WERE stolen by extremely sophisticated schemes, it doesn’t get Trump off the hook – he still acted corruptly and illegally in his efforts to overturn the certification process.

        • Jeffry House says:

          While I am aware that a lawsuit by state attorney generals was thrown out for lack of standing, any election fraud case filed by Donald Trump would automatically have standing.

          Don’t let them get away with that nonsense about “technicalities”.

          As Giuliani put it in court, “We have no evidence but we do have theories.”

          That was the problem right there.

        • timbozone says:

          Yep. You had a President of the United States attempting to remain in office by ignoring Federal court rulings by some of his own appointees, up to including Supreme Court rulings. His contempt for the US system of checks and balance here alone is very telling. Also startling is the contempt or lunacy that other lawyers he consulted with were willing to go to in their assumptions that only they and they alone could do this fairly, without any consideration to the broad concensus that all these court cases seemed to build with regard to the nutty nature of most or all of the claims. Certainly, by the time January rolled around, almost any reasonable person would have concluded that there wasn’t even close to enough legal substance to claims of fraud and malpractice, etc within the US electoral system to change the electoral college vote significantly. Rather than concede the election to any of the huge pile of evidence against their own assertions, the conspirators continued to conspire against the Constitutional transfer of power to a duly elected President.

    • c-i-v-i-l says:

      If Trump wants to make an advice of counsel argument, and assuming that he doesn’t take the stand (as that’s unadvisable), I wonder who is going to testify that Trump relied on advice of counsel.

    • Rayne says:

      That. I think there’s a movement to try and build Trump a road out of this self-constructed quagmire relying on throwing lawyers under the bus.

      Can’t think of his name but at least one other former Trump lawyer opined this week that Trump had been relying on bad advice from his lawyers, but I think it was in regard to Trump’s response to the classified documents charges.

        • bmaz says:

          As I keep saying, nothing is “air tight” nor a “slam dunk” in criminal trial law. But, other than that, yeah it is not good for Trump.

      • Bugboy321 says:

        That would be hysterical if he threw Tom Fitton under the bus, for giving him bad legal advice on the documents case.

      • Leu2500 says:

        Snort! In the documents case he’s relying in large part on the advice of an English major (Tom Fitton.). That’s where the socks nonsense comes from.

        He also took advice from political adviser oops! I need to backdate that I’m acting as an attorney Boris Epshtyn (sic). That’s where the stonewalling is apparently coming from.

        • Bugboy321 says:

          By now he has gotten to be so, so predictable: “Tom Fitton, SOC!” (Straight Outta Casting). What’s that saying about hobgoblins of little minds?

        • Alan Charbonneau says:

          So, the “advice of counsel” defense is problematic. That’s what you’re saying, right?

      • ButteredToast says:

        Even Mike Pence remarked that “[s]adly, [Trump] was surrounded by a group of crackpot lawyers that kept telling him what his itching ears wanted to hear.” (Though Pence did go on to say that “the president ultimately continued to demand that I choose him over the Constitution.”)

      • Howard Cutter says:

        Where is the line, legally, between a lawyer’s duty to provide adequate counsel to their clients and a client’s duty to listen to what competent lawyers are telling him and not to go shopping for another lawyer that will tell him anything he wants to hear for the right price? I have to assume that at some point that would stop being a legal defense if it’s clear the client would only accept lawyers giving him advice that agrees with his predetermined course?

        • earlofhuntingdon says:

          Clients are entitled to competent advice and zealous representation from their lawyers. They are also entitled to ignore that advice at will. That’s when the lawyer needs to decide whether it’s worth sticking for a client who keeps aiming projectiles at their own feet.

          Govt clients are not entitled to ignore the advice of govt employees whose job it is to competently advise them, while searching out every crackpot private vendor with different ideas that have no factual or legal basis. That’s called willful ignorance, and it’s not a defense.

    • Tony K_03AUG2023_1530h says:

      That attorney’s advice thing works only if they are NOT giving you criminal advice as part of a conspiracy. Nice try though.

      [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too short it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]

    • ThomasJ7777 says:

      Essentially, Trump received truthful information when he was told numerous times by experts and officials that he lost the election.

      So he sought out crackpots and criminals who would tell him lies and show him how he could steal the election.

      And he decided to believe them instead.

      • earthworm says:

        Trump started building the scaffolding of this whole –dont know what to call it — “tragicomedy of lies and criminality” back in the early months of the campaign (June, July?).
        He loudly and repeatedly claimed: if he doesnt win the election, it is stolen, or words to that effect.
        Seems like a Goebbels/Bannon/Stone strategy.

      • P’villain says:

        The indictment ably paints that picture. I anticipate lots of trial testimony from members of “Team Normal.”

      • Midtowngirl says:

        I don’t think it’s that he decided to believe lies offered up by crackpot advisors, but that he sought out crackpot advisors that would help him fabricate lies, and provide a veneer of legitimacy (however thin) to his efforts.
        I think it is worthwhile to note that Trump has a long history of claiming elections are rigged. He did it when he lost the Iowa caucuses to Cruz in 2016, he did it preemptively against Clinton, and he did it in advance of the 2020 election.
        And for students of fairly recent history – take a look at the 2018 Florida race for US Senate between Rick Scott (R) and Bill Nelson (D). Scott declared victory on election night, leading by only half a point and with ballots still being counted. Roger Stone was doing his “Stop the Steal” thing, directing everyone to converge on the Broward County Board of Elections. Alex Jones, Ali Alexander, the Proud Boys – they were all there.
        Jan. 6 was a game plan built, at least in part and certainly in principle, on past experience. And Trump didn’t start “believing” anything after he lost – it was a plan already in development in case he did.

  2. BobBobCon says:

    It’s absolutely crazy that Times and Post didn’t have better legal experts lined up well in advance. They couldn’t be certain exactly which charges would be included or the precise arguments, but they would have had a good idea of the range of possibilities and could have been much better prepped to cite experts.

    There are a couple of typos FYI – it should read “the 1512(k) charge” and also “after they had, refused to take steps”

    • Sandgk513 says:

      Well, it would have trampled all over their narrative to have the likes of a Lawrence Tribe or his peers explain just how baseless their assumed pretext truly is now, wouldn’t it.

      So, perhaps not crazy, perhaps par for their courses.

      • Leu2500 says:

        I’m not sure they’d get a good explainer from Tribe or such.

        But Teri Kanefield has been doing a very good job of explaining things to her readers. The NYT & WaPo twin sets should read her current blog post. Then they wouldn’t embarrass themselves with the ‘DoJ needs to prove Trump knew he lied’ nonsense.

        • HGillette says:

          From her website:

          Her legal career began with criminal defense work at the trial level, then she worked exclusively as an appellate defender. For twelve years she maintained a private appellate law practice limited to representing people who had the right to appeal but could not afford to pay.

    • scroogemcduck says:

      Unfortunately, legal expertise has been devalued in the era of Turley, Dershowitz and others saying whatever they think will get keep them in the news.

      • BobBobCon says:

        If don’t necessarily blame attorneys who are contacted at the last second and asked to comment on an isolated question — it can be hard to make a confused reporter understand issues in that context.

        A lot of it comes down to editors and reporters knowing that a looming issue needs a gameplan, and then lining up the options ahead of time and having potential issues already clarified. I doubt they did their homework.

        • CPtight617 says:

          Right. This is what good reporters do all day every day.

          The real problem for readers who expected a credible legal analysis of Trump defense arguments is neither Haberman, Schmidt, Devlin nor Dawsey has any legal training or education. These pieces are political trial balloons/jury nullification poison pills disguised as legal assessments of DOJ’s case.

          I get why Team Trump pushed this narrative to their flaks at NYT & WaPo, but can anyone explain why both papers allowed this to happen? Haberman has absolutely no business opining on FEC reports, and yet, they let her. Why?

          [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. “CPtight617” is your third user name; you’ve previously commented as “Fishstix Fascist” and “cpa.” Thanks. /~Rayne]

        • Stacy (Male) says:

          Right, don’t listen to Harry Littman or Andrew Weissman, lawyers with decades of experience in relevant areas. Instead, only pay attention to bmaz esq’s cryptic insults based on his practice of Law, West of the Pecos. No doubt his years of defending cattle rustlers, peyote merchants and riparian rights disputants gives bmaz esq. a unique perspective that empowers him to sneer at guys like Littman who are much too close to the subjects they opine about. The problem is that bmaz, esq. almost never offers any factual or legal support for his insolence. Last week, he called Jack Smith “Jack Shit”, supposedly because Smith could have–and in bmaz, esq’s view, should have–included the 2nd MAL indictment in the 1st MAL indictment. Perhaps, we’d all be better off if bmaz, esq. were to devote the remainder of his life to whittling or running a goat rodeo.

        • bmaz says:

          Go fuck yourself. Yes, I have actually represented cattle rustlers (still a hanging offense in AZ) and murderers and complex conspiracy defendants. Mostly successfully. Do I have as much, or more, experience in criminal law as Weissmann and Littman? Yes, I do. But thanks for your continued support! Go lather yourself on the TV lawyers though.

        • posaune says:

          Give it up, Stacy. We have learned so much from our bmaz for years and years! And, he is ours. Go away.

        • earlofhuntingdon says:

          Man, you need to get out more. Your notion of lawyers and American geography make that New Yorker map of the USA seem overinclusive.

        • cmarlowe says:

          I like Katyal. Certainly for his work on Moore v Harper and other cases. It seems to me that his TV work is good, though I would defer to bmaz as to that.

        • posaune says:

          Katyal joined my agency’s counsel for SC arguments on the Bladensburg Celtic Cross located in MD highway median,

        • adambulldog says:

          Joyce Vance (former AUSA), Asha Rangappa (former FBI agent, current Yale Law faculty), and Andrew Weissman (former AUSA who worked on the Mueller investigation) all seem very well qualified, intelligent and levelheaded to me.

        • emptywheel says:

          Weissmann is as we speak tweeting out old columns that were wrong when he wrote them. He’s a blowhard who is not familiar with the public record and seems to have personal animus towards some people in DOJ.

          I like Joyce though.

        • Wajimsays says:

          No, his complaint seems to be that he just doesn’t give a shit about tee-vee lawyers making bank chatting with Ari Melber while the real work is going on. Perhaps I’m wrong, of course. But I get your point about the “Elie” crowd

        • jdmckay8 says:

          Agree completely. Katyal has distinguished himself. Several other MSNBC legal folks commenting on this have been anywhere from better-than-average to very good.

    • CovariantTensor says:

      Conservative anti-Trump NYT columnist David French, who was a trial lawyer (at least he says he was) is saying pretty much the same thing: proof beyond reasonable doubt he knew he had lost. The article is called “The Trial America Needs”. Not sure if I can or should post a link (paywall).

    • Fancy Chicken says:

      Legacy media has been face palming crInge worthy on this indictment IMHO. It’s been really disappointing.

      However WAPO has two pieces, one from Amber Phillips that tracks on legal commentators saying that Trump’s claims he believed his lies are irrelevant because he use corrupt means to obtain what he believed (and which was covered much better without need for polling legal commentators by Dr. Wheeler), and another article listing all the advisors/attorneys who told him his beliefs in a stolen election were bunk. Other than that…

      Apologies for any typos, that edit button was an ego saver, but I understand why it’s pulled.

  3. scroogemcduck says:

    “I have a First Amendment right to say whatever I want”. Yes, okay. But clearly this is a category error. The correct question is the elements below evidenced:

    – an agreement between at least two parties,
    – to achieve an illegal goal,
    – all parties alleged to be involved have to have knowledge of the conspiracy and participate in some way, and
    – an overt act in furtherance of the conspiracy.

    Clearly they are. Everything else is a distraction.

    Trump’s lawyers are complaining about a speedy trial and saying that the 6th Amendment should be wished out of existence and the trial moved to WV. That tells me that they believe that the evidence is overwhelming and Trump’s only chance of beating the charges is scheduling. He needs to get to the White House before he’s sent to the Big House.

    • kmlisle_1 says:

      If Trump can’t be charged because of his “Free Speech” shouldn’t the charges against Hunter Biden lying about his addiction when purchasing a firearm also be dropped? (Along with a lot of other charges including several listed in this post by Marcy)

    • CovariantTensor says:

      Here’s a question for the lawyers that’s been bothering me for a while: the Sixth Amendment right to a speedy trial is a right for defendants not to be held for a long time, or indefinitely, without due process. Not a right of “We the People” to have someone tried speedily. Right? I think I posed this question before, and if someone answered it and I missed it, my apologies. I’ll check back here.

      • Rayne says:

        Do your own homework. Search engines can pull this up for you. Perhaps with only (59) comments under your belt since June 2023 you haven’t cottoned on to how this site works.

        ATTN Community Members:
        — Start thinking about the ways trolls can obstruct discussion in threads by spinning your time and energy on stuff like this which can be answered easily by doing the work and not asking *you* to redirect your attention from the content of the post itself.
        — This is NOT an intro level site; we expect more and better from comment participants commensurate with the caliber of posts. Do your Constitution 101 *before* entering comments here.

  4. Readonly says:

    As usual, bringing clarity where others either deliberately muddy the waters or else lap it up without question–thank you, EW.

  5. Kmuizelaar says:

    As a legal illiterate I find your articles sometimes hard to follow, but this is a very lucid explanation how the special counsel can prove its case. Thank you for that.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. “Kmuizelaar” is your third user name; you’ve commented previously as “Klaas” and “Klaas Kmuizelaar.” Thanks. /~Rayne]

  6. John McIntire says:

    The sentence « Curiously the timeline on this conspiracy only starts on November 14, after all the votes were cast« 

    May we assume that Smith chose November 14 to preempt a defense that « We were only trying to ensure that all the ballots were properly counted » … ?

      • Scott_in_MI says:

        Is it, then, an indication that whatever discussions on this topic may have been happening in the Trump camp prior to 11/14, there’s no evidence tying Trump to that conspiracy before that date? Or is it something else?

        • P J Evans says:

          It’s because it’s after the date they know, and can demonstrate, that he had been told that he LOST. (ISTR that this is brought up in one of the earlier posts on this indictment.)

        • harpie says:

          PJ Evans answered already, but here it is from the indictment:

          [pdf9/45] 13. Shortly after election day-which fell on November 3, 2020-the Defendant launched his criminal scheme. On November 13, [11/13/20] the Defendant’s Campaign attorneys conceded in court that he had lost the vote count in the state of Arizona-meaning, based on the assessment the Defendant’s Campaign advisors had given him just a week earlier [11/7/20 See pdf8/45], the Defendant had lost the election. So the next day, the Defendant turned to Co-Conspirator 1, whom he announced would spearhead his efforts going forward to challenge the election results. From that point on, the Defendant and his co-conspirators executed a strategy to use knowing deceit in the targeted states to impair, obstruct, and defeat the federal government function, including as described below.

        • Bugboy321 says:

          “the Defendant’s Campaign attorneys conceded in court that he had lost the vote count in the state of Arizona”
          I was not aware of this. That, on top of Fox calling AZ for Biden, must have had Trump raging mad.

  7. BRUCE F COLE says:

    In Maggie’s defense, her buying his lame excuses makes sense because she’s not going to want to interview Trump in jail, is she? That prospect is so utterly demeaning for someone of her stature — and what will she do with herself if Trump is no longer available to her? Of course he’ll be exhonerated!

    • 0Alexander Platt0 says:

      I suspect there is far less to it than this. Haberman’s skills are in gaining access to Trump and his circle and reporting what they say and do. That’s what she does best and that’s what she does here. Expecting something else, like legal analysis and rebuttal, is a kind of categorical error. Your concocting some sort of ulterior motive is, I suspect, unhelpful.

      • David F. Snyder says:

        Well, there is an ulterior (economic) motive isn’t there? —maintaining access, the ability to break camp-insider info.

      • BRUCE F COLE says:

        Motive may be too strong a word. “Urge,” maybe.

        So again, I didn’t see the need for a snark tag, whereas I’m always behind the curve guessing how obvious I think a joke is.

        Still and all, she and her cohorts mentioned in this story are blinkered, are they not? The WaPo even had lawyers explaining what they didn’t get and they still didn’t get it. It is indeed as if Trump’s words coat their ear canals with ignorance.~

        “Ignorance,” btw, can most frequently be accurately described as “the art of ignoring.” And that’s not meant to be a joke.

    • OhBeJoyful says:

      I’ve read about Maggie’s mother’s connections to Trump world, but don’t understand why some here are so snarky about her and Michael Schmitt’s reporting. I don’t think either claim to be legal analyst.
      Really enjoy the insight I gain from Marcy, and others.

      • Rayne says:

        You might ask why people would be snarky about Judith Miller’s reporting on Iraq for NYT, because Haberman’s work draws similar snark for similar reasons.

      • earlofhuntingdon says:

        Haberman’s role for the NYT seems to be to gain access to and publish largely whatever Trump and his top courtiers want to say. Her reporting is often credulous in not providing context or criticism for his assertions. Her work is often stenography, lucrative clickbait, but not reporting.

  8. montysep says:

    It will be interesting to look at Giuliani’s testimony either to a jury in this case or to the Grand Jury that presided here. His public remarks are always so misleading ambiguous deceitful & evasive. Curious to see how testifying under oath helps his phony jumbled shtick come into focus.

    Still expect a hundreds of “I don’t recalls.” Some of those might be credible due to the passage of time. Unlike Pence Rudy won’t bring notes.

    • emptywheel says:

      My very favorite anecdote from the foreperson in Fani Willis’ GJ is her description of how after one witness claimed to have a bunch of evidence for something, the prosecutor write up a subpoena on the spot.

      I imagine Rudy’s “proffer” before Jack Smith went similarly.

    • emptywheel says:

      If DOJ succeeds in getting him treated as a CC, he won’t necessarily be called as a witness. Trump can call him, if he thinks it’ll help, but DOJ won’t need to under conspiracy exception.

  9. Amicus12 says:

    The above post is obviously correct. Two things:

    First, to the extent anyone finds it helpful here is what the DOJ Manual says about knowingly false statements.

    A defendant is not relieved of the consequences of a material misrepresentation by lack of knowledge when the means of ascertaining truthfulness are available. In appropriate circumstances, the government may establish the defendant’s knowledge of falsity by proving that the defendant either knew the statement was false or acted with a conscious purpose to avoid learning the truth. See United States v. West, 666 F.2d 16, 19 (2d Cir. 1981); Lange, 528 F.2d at 1288; United States v. Clearfield, 358 F. Supp. 564, 574 (E.D. Pa. 1973). Proof that the defendant acted with reckless disregard or reckless indifference may therefore satisfy the knowledge requirement, when the defendant makes a false material statement and consciously avoids learning the facts or intends to deceive the government. See United States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir. 1979).

    Second, on the obstruction point, in addition to all of the decisions and analysis already set forth in this forum a simple thought exercise might be useful. Assuming Trump did subjectively believe that he had won the election, would it have been lawful for him to call out the Marines from the 8th Street barracks and have them march into the Capitol and suspend Congress? I think not, consistent with my understanding of the Constitution. Now there is a falsity aspect with respect to the obstruction conspiracy in the submission and attempted submission of the fraudulent elector documents, but fraud isn’t protected speech.

    • John Paul Jones says:

      Well said; and it jibes exactly with Royce Lambert’s ruling in Hostetter. Truly, you are a friend of this non-official court. I look forward to your postings because they are always clear and on point.

    • Konny_2022 says:

      Thank you, Amicus, for your points. I’ll put a short version into my notebook:

      (1) Acting “with a conscious purpose to avoid learning the truth” is considered equal to knowing the falsity.

      (2) Fraud isn’t protected speech.

  10. central texas says:

    The problem, it seems to me, is that the NYT and WP are basically letting the modern equivalent of the 1950’s gossip columnists (Louella Parsons, Hedda Hopper for example) write about issues and ideas that they show not the slightest ability to comprehend, and less to explain. The have zero “news” value aside from stroking the fears and fantasies of the elderly shut-ins who are their editorial audience.

  11. Pat Neomi says:

    Am I wrong to think that this supposed First-Amendment defense, specious as it may be, would almost necessarily require Trump’s testimony to substantiate? It seems possible that you could have other witnesses establish that it’s theoretically possible that a generic someone could believe that Trump won. But in order for the defense to apply that to Trump–in order to demonstrate that that is in fact what he thought–wouldn’t he need to take the stand? Even though his attorneys would be there during cross to attempt to minimize the potential harm of Trump trumping on the record, would the risk outweigh the benefit? If so, what are the implications of that for the prospects of defending these charges writ large?

    • Bobby Gladd says:

      Given that Trump was/is obviously “talking his own book“ here—that he obviously had/has a huge material interest in the result of his assertion, I would have to wonder about the relative risk/benefit of him testifying.

  12. kpavlovic says:

    Of late the Post has been publishing articles by Barrett and Dawsey without comments. Likely the result of commenters increasingly calling them out for their learned stupidity ala Marcy.

    • Bobby Gladd says:

      When I leave comments on relevant Washington Post articles, I frequently cite and link Marcy. I have noticed that lack of comments sections lately, too.

      • BirdGardener says:

        I have a question about this.

        I remember (possibly incorrectly—it was some time ago) a post asking people to be careful about where they leave links to this site, so as not to bring a horde of trolls. Are mainstream news sites okay places to leave links? It’s been a number of years since I hung out at the Washington Post, but when I did, the political pages seemed to be popular with trolls.

        For that reason, I’ve only provided EW links on the rare occasions when I email reporters/news-sites to prod them about inaccuracies in their articles. Figured they weren’t going to attempt any DOS attacks. Is this overly cautious?

      • iamevets says:

        Same thing. I pretty much only go to Dawsey or Bartlett to post emptywheel articles, and lately neither allow comments. More and more when they do allow comments they are getting butchered.

        Refuse to pay for the NY times.

      • Tech Support says:

        Along with being cowardly that’s just a failure of understanding your own business model. If you’re going to have your paid content creators make controversial assertions, you absolutely need to provide space to not just host but nurture the backlash. These days we call that engagement.

      • wasD4v1d says:

        I explicitly state in every comment on WaPo that Marcy Wheeler is the antidote to Josh Dawsey.

  13. Doctor My Eyes says:

    Just to be clear, this infuriating opining by Haberman et al is not a byproduct of some issue like gaining readers or not consulting real legal experts; this is intentional PR, and clever at that. They are not ill-informed, they are publicists carrying the torch of their publicist forebears. I’m continually amazed at the ways they find to frame even the most damning of circumstances.

    Also too, it is frustrating to see the hair splitting, in which the “lock her up” crowd are fiercely concerned with constitutionality and the rule of law. How odd that they would think the weaponized deep state would be moved by Trump’s right to free speech. It is tiresome to point out the many inconsistencies of those who would destroy our democracy. The boredom and exhaustion is part of the strategy. In the end, propaganda boils down to convincing people to ignore what their eyes and ears tell them. There is ample evidence that we humans are quite susceptible to doing just that. To any “reasonable observer”, Trump’s behavior over an extended period of time constituted an attack on the constitutional order. And we have the National Review, among others, arguing that said attack is not illegal. It is easier to shake in silent fury than to mount arguments against such nonsense. Thank heavens Marcy is more than up to the task.

    • Konny_2022 says:

      “It is easier to shake in silent fury than to mount arguments against such nonsense.”

      Yes, I agree, because no argument will do it when the other side refuses reasoning (quite often by means of projection).

      Like Kim Wehle has formulated in her article about the indictment (as quoted by Charlie Sykes): Trump was “lying to the mob that Pence was abdicating his constitutional duty by refusing to abdicate his constitutional duty.”

  14. bgThenNow says:

    It is infuriating that the willful dissemination of bad information by ostensible journalists in ostensible legit publications is contributing to the hardening of the lies told by all of these people.

    Thank you Marcy for trying to educate them. At this point it is just beyond irresponsible and is also unforgivable.

  15. Trevanion says:

    I am second to no one in continual appreciation of EW analyses like this.

    But I must say that. after reading what has been written by so many, many presumably well-educated NYT/WaPo/WSJ/networks reporters these past 24+ hours — it is very difficult to shake the conclusion virtually none of them have actually taken the time to read through the entire 45 page indictment.

    And I say that not as a (deserved) glib insult of laziness posing as hubris, but in serious wonder of whether this episode of the indictment being handed down also has us witnessing a large scale mass demonstration of social media culture’s impact not only on ‘messaging’ but also on eroding behaviors related to cognition.
    Or perhaps I am just yelling at some clouds.

    • Doctor My Eyes says:

      eroding behaviors related to cognition

      Well said. It’s been going on a long time, and it’s getting worse. The more unfavorable reality is to a person’s ideology, the more desperately cognition is short-circuited. Unfortunately for us, the climate is not affected in the least by what humans believe or don’t believe. Neither are attacks on the social order from an ego-maniacal sociopath. The Haberman’s of the world would teach us to be defenseless.

    • Tech Support says:

      The extreme decentralization of publishing and broadcasting (aka, The Internet) has generated an awesome variety of nonlinear effects that it may not truly stabilize for another generation. The same forces that undermine traditional institutions also make new venues like Emptywheel possible.

      It places a burden on us to be more skeptical, and to exert more personal energy in finding the most valuable sources of reliable information and sharing them around. At the same time I think we should also acknowledge that these decaying institutions were never as authoritative or as reliable as we believed them to be when they held a monopoly on the public consciousness.

    • PJB2point0 says:

      You are not being glib. You raise a good point and it troubles me too. It isn’t just Maggie H and crew. This seems an endemic problem and makes you question the credibility of the mainstream press generally. If you saw the National Review’s editorial on the indictment you would see they essentially made up their own charges and then knocked them down. I’m no conservative but in Buckley’s time I feel like there was much more rigor applied.

      Smith’s brief presser (like his last one) said essentially: I wrote a speaking indictment. Please read it. I took the time to read it yesterday. Took me about an hour to read it carefully. It isn’t a hard read and it isn’t my literal job to read it. Why cannot supposedly serious reporters who want to comment on legal affairs just read the source material that is being spoon fed them?

  16. klynn says:

    Honest question. Is it going to be possible in an effective manner as a defense lawyer, for Trump to not be put on the stand for these charges?

    • Fraud Guy says:

      Any sane lawyer would not want to put Trump on the stand. He has the right to remain silent, but not the ability, and also has a compulsive habit to create his instantly favorable narrative on the spot, regardless of whether or not it matches prior testimony, so he would impeach himself repeatedly.

    • Robot-seventeen says:

      I believe he may have to if he is going to assert he was relying on the advice of counsel.

  17. WilmingtonFrisbeeGuy says:

    Maybe I’m oversimplifying things but could the litigation of shit posting, conspiracy mongering, lies and what-a-boutism be the goal here? All they have to do is find one chink in our judicial armor to say “It’s ok to act on what you believe instead of what you know” and the MAGA’s, Q’s and luddites will have everything they want. Would make a popular Joe Rogan podcast.

    I’m sure the legal scholars here may scoff at this and tell me how silly it is but just look at what’s been put in front of Judges to date. They’re going to try this and is there really a non-zero chance of it working?

    [Thanks for updating your username to meet the site’s standard – unique with 8-letter minimum. Please be sure to use it and the same email address each time you comment. /~Rayne]

  18. mainsailset says:

    The unindicted 6 notably have less than few options, but that doesn’t rule out the bizarre option of a trial opening with 5 (and maybe 6) ex Trump lawyers who walk into the courtroom as witnesses. Now that would be a Smith-sized win.

  19. David F. Snyder says:

    Useful, thanks. Re my first comment, surely Lauro is aware of these facts (and Smith clearly knows how to counter these supposed defenses) ? So is Lauro just playing a tune those financing his gig want to hear?

  20. Steve S from CT says:

    Every “analysis” piece claims DOJ needs to prove Trump actually believed he lost, but is that true? Seems like they’re skipping a step, and DOJ would meet its initial burden of proof by showing Trump “knew” he lost, i.e., by providing evidence that he was informed of that fact by an authoritative source. The question of “belief” would only enter into it, I’d assume, if Trump raises that as a defense – “I may have been told but I didn’t believe it.” Then perhaps DOJ would need to rebut that defense with additional evidence of Trump’s state of mind, but not by default, right? (any actual lawyers who could comment?) Further – as Bill Barr pointed out on CNN last night, seems like the only way Trump could use this “state of mind” defense (“I sincerely believed I won” or “I relied on counsel”) would be to take the stand himself and testify as to his state of mind, which even Barr notes “wouldn’t go well for him.”

      • Steve S from CT says:

        The definitions of “scienter” I’m seeing all use the word “knowledge” not the word “belief,” which is consistent with what I wrote above.

        • Shadowalker says:

          It doesn’t matter what he believed. The election(s) were already looked at by both state and federal courts (including SCOTUS). Granted some were tossed on technical grounds, but others did look into the evidence and found it lacking. It’s like someone loses a civil case, and then after appeals have been exhausted, decides that their belief overrides the judicial system and takes matters into his own hands and ignores what the courts decided multiple times.

        • PJB2point0 says:

          At least in the area of federal securities law where I practice, the concept of “Scienter” encompasses knowledge, intention and recklessness, which is to say not mere negligence (i.e. should have known better) but a callous disregard for the truth. If everyone with reason to know X is true tells you that X is true and you nonetheless insist Not X is true, it makes no difference whether you believed Not X is true.

        • wasD4v1d says:

          etymologically, ‘scientia’ is Latin for knowledge. Belief is based outside of the realms of either knowledge or faith (think trust, confidence – ‘with fidelity’ out of Latin). Beliefs cannot be proved, which is the whole point.

        • c-i-v-i-l says:

          The notion that belief and knowledge are disjoint sets is odd to me. In epistemology, a common definition of knowledge is justified true belief, making knowledge a subset of belief.

  21. cmarlowe says:

    Can Chutkan prohibit Trump for commenting on this case, including disparaging the SC and the judge?

  22. earlofhuntingdon says:

    Is anyone else annoyed that when Nicolle Wallace interviews her husband, Mike Schmidt, she assumes that viewers know that they’re married and treats him as if he’s just another big media reporter: omniscient, objective and without bias?

    • Matt___B says:

      What about Peter Baker and Susan Glasser? I know, they’re both on the “interviewee” end of things. Also, did Andrea Mitchell ever interview Alan Greenspan?

      • Molly Pitcher says:

        Andrea Mitchell’s interview by date is LONG past. Her aphasia is so pronounced that it is often hard to follow what she is trying to say.

        • Matt___B says:

          I mentioned her because she’s married to Alan Greenspan and wonder if she ever interviewed him on-air without disclosing that.

          Has she in fact actually been diagnosed with aphasia? I do find her hard to follow sometimes, but never thought it was disease-related.

  23. Matt Foley says:

    According to my MAGA Constitution
    Lying to nullify 81 million votes = free speech
    Saying hi to your son’s friends and business partners = treason

    • earlofhuntingdon says:

      Sure, what parent should be able to carve out special time in their professional schedule to take phone calls or texts from a lone surviving and troubled adult son, with a myriad of problems from time to time?


  24. Boojie in Oly says:

    Long time reader (think: Fire Dog Lake), small monthly contributor to this site. Excellent work all around. Thank you.

    It occurred to me this morning, reading about Giuliani’s various exposures, that perhaps Giuliani admitted to the false statements about the Georgia election workers because he was coming clean in a separate, overlapping proffer — suggesting that he was forced to tell the truth based on his testimony relating to the Jan 6th case just indicted. Testimony intended to garner some leniency from prosecutors.

    I realize this is far-fetched IANAL material. And the situation is probably much more complicated and constrained by fact and law. Just a thought.


  25. ExRacerX says:

    tfg on Truth Social: “…This Indictment is all about Election Interference!!!”

    Yes, it is.

  26. greenbird says:

    yep, i came back … because it’s not far off that i will be astounded at the improvement of my thinking skills learned from the Smith-Trump ringside seat with marcy and you guys.
    at least I HOPE SO. i will sacrifice my sense of humor to that cause.
    wish i’d designed a proxy door-marker, measuring my progress, tho.

    how THE HELL did i miss this post of marcy’s ?? …

    oh, dear – it will be FRIDAY next …
    guess i could spend the weekend here:
    – Here are some interesting links for you! Enjoy your stay :)
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  27. pacificsouthcoast says:

    watching Lauro tonight it seems his strategy is to accept the facts and argue the legal principles governing the factual issues. Trumps actions ,in searching for the truth about election fraud, were to protect the country from offences or fraud against it. On january 20th he peacefully transitioned the presidency

  28. JohnJJSchmidt says:

    I hope this isn’t old news by now but this post is featured in a Daily Kos post!
    The whole post has nothing but glowing things to say about you.

  29. 2Cats2Furious says:

    I know I’m late to this party, but I just wanted to say this piece is the most thorough and cogent analysis of the election fraud indictment that I have seen, or am likely to see. I’m bookmarking it for future reference.

    Not that I would expect any less from Marcy, but this post exceeded my expectations of her uniformly excellent work. Well done!

Comments are closed.