Donald Trump, as the world now knows, already had been charged in two criminal cases. But now a federal indictment has been issued that charges him with actions he allegedly took as a sitting president to overturn the will of the American people and illegally stay in office after losing the 2020 presidential election.
It is the first time such charges have been levied in U.S. history. And the new case, constitutional scholars and legal analysts tell USA TODAY, is exponentially more serious – and historically consequential – than anything Trump has faced before.
The new indictment, first disclosed by Trump himself in a post on his Truth Social platform, was handed up Tuesday by a federal grand jury in Washington and his legal team was then notified, according to a person familiar with the case. That means the former president will soon be taken into custody and make a court appearance. He will likely surrender voluntarily under some agreement between his lawyers and federal prosecutors from the office of special counsel Jack Smith.
Legal analysts, speaking broadly about the expected charges, say the new case is unprecedented.
“These alleged offenses go to the very foundation of our democracy, namely, interference with the votes of the American people that give legitimacy to the functioning of our entire political system,” said Norman Eisen, an ethics and governance scholar who served on the House panel investigating Trump’s first impeachment.
“You cannot get more serious possible crimes than that,” Eisen said. “What Trump was trying to do was a self-coup, using lawyers instead of soldiers.”
More:Is Trump indictment in big Jan. 6 case imminent? Jack Smith’s background may hold hints
Noah Bookbinder, a former federal prosecutor who is now executive director of Citizens for Responsibility and Ethics in Washington, said no one should take lightly Trump’s two existing cases, in which he’s charged with allegedly hoarding classified documents when he left office in 2021 and paying hush money to a mistress while campaigning for it in 2016.
“There’s credible evidence that he engaged in a wide variety of criminal activity and that’s extraordinary,” said Bookbinder. “But when Donald Trump engaged in a course of conduct to try to keep himself in power after losing an election, that really endangered the viability of democracy in America.”
“It really was an assault on this republic and on the form of government that we’ve had for centuries,” Bookbinder said. “And that is just about the most dangerous and serious thing that a leader in this country, maybe that anyone in this country, can do.”
Here’s a look at the charges brought by Smith – as well as a looming one by a Georgia prosecutor – and why legal experts say they are so significant:
What is Trump being indicted for?
Trump has been under investigation on two fronts for allegedly illegal activity in the weeks and months after losing the 2020 election to Biden.
One probe was launched almost immediately by Fulton County District Attorney Fani Willis in Georgia for Trump’s alleged efforts to overturn Biden’s win in the critical swing state.
Willis, who represents the broad Atlanta area, has since widened her investigation to look into alleged efforts by Trump and his team of lawyers and other associates to overturn Biden election victories in other states too, primarily by creating a false slate of electors who could then be approved by Trump allies in Congress.
More:Will DOJ’s target letter to Donald Trump lead to a new indictment? Here’s what it could mean.
The Justice Department also launched a wide-ranging investigation into the events of Jan. 6, including Trump’s efforts as president to overturn the election.
When Trump declared himself a candidate for office in 2024 last November, Biden’s politically appointed attorney general, Merrick Garland, tapped Smith − a former DOJ lawyer and war crimes prosecutor − as a special counsel to take over the various Trump probes in an effort to prevent the appearance of a politically motivated conflict of interest.
Close to the vest, but glimmers of details
Both Smith and Willis are well-known for keeping their investigations close to the vest, but glimmers of what charges they are likely to seek have emerged from their respective investigations, which remain independent of each other.
In the federal case, Smith had sent Trump what’s known as a “target letter” based on evidence that prosecutors have brought before grand juries sitting in Washington and South Florida.
The target letter, which Trump has confirmed, notified the former president that he faces at least three criminal felony charges relating to the events on and before Jan. 6, when pro-Trump rioters stormed the U.S. Capitol and stopped Congress from certifying Biden’s Electoral College win and initiating the orderly transfer of power.
According to the target letter, one of the charges is conspiracy to defraud the United States, which gives prosecutors extremely wide latitude in deciding how to prosecute Trump and suspected co-conspirators for allegedly teaming up after the election to overturn its results.
Another charge appears to focus on obstruction of an official proceeding, presumably regarding the orderly transfer of power that was temporarily halted at the Capitol on Jan. 6. And a third reportedly involves a post-Civil War civil rights statute that makes it a crime for people to conspire to threaten or intimidate others from exercising their rights under the Constitution and federal law.
In the Georgia case, Willis has all but said she plans to indict Trump and potentially a host of other people in a broad-ranging racketeering or conspiracy case.
The Georgia conspiracy law is much broader than the federal conspiracy statute, because it only requires a corrupt agreement between two or more persons, even if they never take steps actually to do anything.
Willis has used the state anti-racketeering law before, including in a case against Atlanta public school administrators and teachers accused of conspiring to inflate test scores illegally.
To be guilty, she said in her opening arguments in that case, all co-conspirators “have to do is all be doing the same thing for the same purpose. You all have to be working towards that same goal.”
But neither Smith nor Willis has given any hint of who else might be indicted along with Trump in the alleged conspiracy, and for what.
A potentially large group of Jan. 6 co-conspirators
If Smith and Willis bring that kind of broad conspiracy case, the possibilities of who else might be charged are wide open.
Trump’s former White House director of trade and manufacturing, Peter Navarro, openly boasted about scheming to delay certification of Biden’s 2020 election with the help of longtime Trump adviser Steve Bannon. In Navarro’s 2021 book, “In Trump Time,” he referred to it as operation “Green Bay Sweep” and said it was the “last, best chance to snatch a stolen election from the Democrats’ jaws of deceit.”
Navarro, who has denied wrongdoing, said in a later interview that Trump was “on board with the strategy,” according to the special House Jan. 6 committee investigating the attacks.
Smith’s investigators have brought many of Trump’s closest political allies and White House associates before the grand jury for questioning, including former chief of staff Mark Meadows and Trump’s personal and campaign lawyers, such as Rudy Giuliani.
But there are perhaps six other potential conspiracies involving Trump, according to legal analysts and the Jan. 6 committee, which referred three charges to the Justice Department for criminal prosecution based on its 18-month investigation and series of public hearings.
More: ‘Somewhat dicey’ and ‘problematic’: Inside Trump’s bid to have fake electors overturn 2020 election
One was Trump’s alleged effort to steal or illegally obtain votes in several states, notably in Georgia, where he called Secretary of State Brad Raffensperger and demanded that he help him “win” Georgia: “So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have, because we won the state,” Trump said on the call, which also included aides and lawyers.
Another possible scheme involved cultivating fake electors in at least four swing states in an effort to illegally replace the Electoral College votes legitimately given to Biden because of his wins in those states’ popular vote.
There is Trump’s alleged conspiracy with Justice Department official Jeff Clark to have the Justice Department investigate election fraud that didn’t exist. And there is Trump’s unrelated effort to pressure then-Vice President Mike Pence to refuse to certify the election, which Pence refused.
Trump also faces potential liability over his efforts to raise millions of dollars by lying about losing an election he knew Biden had won. And last but certainly not least, according to the Jan. 6 committee and legal analysts, were Trump’s alleged efforts to send his supporters to the Capitol on Jan. 6 and stop Congress from certifying the election.
Former federal prosecutor and criminal defense attorney Rory Little said the fact that the two new potential cases involve the actions of a sitting president make them a critically important test for the viability of American democracy.
“The wide ranging scope of charges is almost unheard of. It’s really like an organized crime case against the boss of a very large crime family,” said Little, a professor of constitutional law at the University of California School of Law, San Francisco. “But it’s also a crisis for the rule of law, because either our system is going to sort of get through this with a feeling of integrity, or we’re going to emerge from this with a great loss of public confidence in what the law can accomplish and what the law means.”
More:A breakdown of the 187 minutes Trump was out of view on Jan. 6 as aides urged him to act
Will criminal indictments for Jan. 6 hurt Trump politically?
So far, Trump’s mounting legal jeopardy has done little to help his presumed Democratic rival in the 2024 election, Joe Biden, or even to break the political stalemate that has deadlocked Congress – and the American people – in terms of who they’ll support.
In fact, the more Trump faces increased criminal jeopardy, the more it helps him politically as the 2024 Republican presidential primary field takes shape. President Joe Biden usually holds a slight lead over Trump in a general election contest but one recent poll, the New York Times/Siena College poll released Tuesday, found Trump and Biden to be tied at 43 percent in a general election matchup.
Contributing: David Jackson
