Overview of the Indictment of Former President Trump Related to the 2020 Election

Overview of the Indictment of Former President Trump Related to the 2020 Election

Legal Sidebari

Overview of the Indictment of Former
President Trump Related to the 2020 Election
August 3, 2023
On August 1, 2023, Special Counsel Jack Smith announced that former President Trump had been
indicted by a federal grand jury in the District of Columbia. The four-count indictment alleges that the
former President participated in several criminal conspiracies:
• “A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to
impair, obstruct, and defeat the lawful federal government function by which the results
of the presidential election are collected, counted, and certified by the federal
government, in violation of 18 U.S.C. § 371”;
• “A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at
which the collected results of the presidential election are counted and certified ... in
violation of 18 U.S.C. § 1512(k)”; and
• “A conspiracy against the right to vote and to have one’s vote counted, in violation of 18
U.S.C. § 241.”
The indictment also alleges that the former President “attempted to, and did, corruptly obstruct and
impede ... the certification of the electoral vote” in violation of 18 U.S.C. §§ 2 and 1512(c)(2). This is the
third criminal indictment of former President Trump. It follows a state indictment connected to an
investigation by the Manhattan District Attorney’s Office into alleged payments made during the final
weeks of the 2016 presidential election, and a separate federal indictment stemming from a federal grand
jury investigation in Florida related to the alleged unlawful retention of national security information
(discussed in this CRS product). This Legal Sidebar provides an overview of the August 1, 2023,
indictment (“the Indictment”), describing general indictment procedures before summarizing the federal
statutes included in the Indictment.
Legal Background on Indictments
With some exceptions, the Fifth Amendment and Rule 7 of the Federal Rules of Criminal Procedure
require an indictment to prosecute someone for a federal felony (that is, an offense punishable by more
than one year of imprisonment). Indictments are formal charges obtained via a grand jury, a group of
citizens summoned by a court to determine—generally, in secret—whether “enough evidence exists to
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charge [a] person with a crime.” Courts sometimes describe a grand jury as serving both a “sword”
function through its investigative powers (such as compelling witnesses to testify) and a “shield” function
in “insuring that serious criminal accusations will be brought only upon the considered judgment of a
representative body of citizens acting under oath and under judicial instruction and guidance.” A federal
prosecutor “ordinarily brings matters to the attention of the grand jury and gathers the evidence required
for the jury’s consideration.” In general, the federal prosecutor also examines witnesses, summarizes
evidence, and “advises the lay jury on the applicable law.” An indictment requires that twelve or more
jurors agree by a vote that there is probable cause to believe that the person to be indicted committed a
crime. Exact formulations vary, but the Supreme Court has characterized the probable-cause standard as
“the kind of ‘fair probability’ on which ‘reasonable and prudent’” people act. Probable cause is a higher
standard than “reasonable suspicion” but does not require proof that something is “more likely true than
false.” The federal prosecutor decides whether or not to sign an indictment and “to proceed with
prosecution.”
Statutes Identified in the Indictment
Obstruction of Congressional Proceeding: 18 U.S.C. §§ 2, 1512(c)(2),
1512(k)
The Indictment alleges that former President Trump violated 18 U.S.C. § 1512(c)(2), an obstruction-of-
justice provision that authorizes fines and up to 20 years of imprisonment. The Indictment also charges
the former President with conspiring to violate Section 1512(c)(2) in violation of Section 1512(k) and
attempting to do so in violation of 18 U.S.C. § 2.
Section 1512(c)(2) makes it a crime to “corruptly ... otherwise obstruct[], influence[], or impede[] any
official proceeding, or attempt[] to do so.” Federal prosecutors have used § 1512(c)(2) to charge
individuals for conduct such as falsifying evidence to influence a federal grand jury investigation and
tipping off the target of a grand jury proceeding about an undercover operation. Numerous individuals
involved in the unrest at the Capitol on January 6, 2021, have also been charged under the provision in the
same jurisdiction where the Indictment has been filed. In one such case, United States v. Fischer, a split
D.C. Circuit panel held that Section 1512(c)(2) “encompasses all forms of obstructive conduct,” including
“violent efforts to stop Congress from certifying the results of the 2020 presidential election.”
To prove a § 1512(c)(2) violation, prosecutors must establish that the defendant engaged in one of the
proscribed acts, that is, that he obstructed, influenced, impeded, or attempted to do so. The Fischer court
rejected the argument that § 1512(c)(2) reaches only obstructive conduct related to evidence impairment.
In reaching that conclusion, the court emphasized the subsection’s relationship to § 1512(c)(1)—another
subsection of the same statute that focuses specifically on certain alteration, destruction, mutilation, or
concealment of documents or other objects “with the intent to impair [their] integrity or availability for
use in an official proceeding.” The court determined that § 1512(c)(2)’s use of the word “otherwise”
before its list of prohibited acts means that it “applies to all forms of corrupt obstruction of an official
proceeding, other than the conduct that is already covered by § 1512(c)(1).”
Second, federal prosecutors must establish that the obstruction or other proscribed conduct was in relation
to an official proceeding. The Fischer court concluded that the Electoral College count qualifies. The
court explained that the relevant statutory definition of “official proceeding” expressly includes “a
proceeding before the Congress.” Although the defendants in Fischer contended that only congressional
proceedings involving “investigations and evidence” are covered, the court disagreed based on the plain
meaning of “proceeding” and the nature of the vote certification.

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Third, § 1512(c)(2) requires proof that the defendant acted “corruptly.” This intent element may be
complicated by the split opinion in Fischer. Judge Pan, who authored the lead opinion in the case,
declined to adopt “any particular definition of ‘corruptly’” but considered “three candidates:”
1. wrongful, immoral, depraved, or evil;
2. with corrupt purpose; and
3. “voluntarily and intentionally to bring about either an unlawful result or a lawful result by
some unlawful method, with a hope or expectation of either financial gain or other
benefit to oneself or a benefit of another person.”
According to Judge Pan, “[u]nder all those formulations, ‘corrupt’ intent exists at least when an
obstructive action is independently unlawful,” and the third definition requires an additional element of
hope or expectation of personal benefit to oneself or another. Judge Pan concluded that the alleged
conduct in Fischer—“assaulting law enforcement officers while participating in the Capitol riot” with the
intent of “helping their preferred candidate overturn the election results”—would have satisfied any of the
three definitions. In a concurring opinion, Judge Walker disagreed with Judge Pan’s decision not to define
“corruptly,” because the combination of “a broad act element and an even broader mental state” would
leave § 1512(c)(2) with a “‘breathtaking’ scope.” Judge Walker would have “give[n] ‘corruptly’ its long-
standing meaning” of “an intent to procure an unlawful benefit either for himself or for some other
person.” In a dissenting opinion, Judge Katsas disputed the various formulations of “corruptly” articulated
in the lead and concurring opinions, calling the term a “broad and vague adverb” without “meaningful
limits” and arguing that Congress intended to cabin the statute through a narrow interpretation of the
“obstruct[], influence[], or impede[]” elements.
Although unaddressed in Fischer, several federal appellate courts have concluded that § 1512(c)(2) also
contains a nexus requirement, meaning that the charged conduct must have the “‘natural and probable
effect of interfering with’ an official proceeding” and that the accused must know it was likely his actions
would affect “a particular proceeding.” A number of opinions from the U.S. District Court for the District
of Columbia predating Fischer have concluded that § 1512(c)(2) contains a nexus requirement, including
some that the Fischer court described in passing as “thorough and persuasive.”
On May 23, 2023, the D.C. Circuit issued an order rejecting a motion for rehearing in Fischer. At least
one co-defendant in Fischer is seeking certiorari from the Supreme Court.
Conspiracy, 18 U.S.C. § 371
The Indictment further alleges that former President Trump violated 18 U.S.C. § 371, a federal conspiracy
statute that authorizes fines and up to five years of imprisonment. Exact formulations of the statute’s
elements vary, but ordinarily to prove a § 371 violation, federal prosecutors first need to establish an
“agreement between two or more persons to pursue an unlawful objective.” The agreement may be tacit
or explicit. The government does not need to show that the conspirators agreed on all “details of their
criminal scheme,” so long as they decided on the “essential nature” of it. Given the inherently secretive
nature of conspiracies, “direct evidence of the crime is frequently difficult to obtain.” As such,
prosecutors may instead rely on circumstantial evidence to establish the existence of an unlawful
agreement. Such evidence could include, among other things, “inferences from the conduct of the alleged
participants,” the “joint appearance of defendants at transactions and negotiations in furtherance of the
conspiracy,” and other evidence showing “unity of purpose” between conspirators.
Second, the government must prove that the agreement was to either “commit a specific offense,” or—as
alleged in the Indictment—to “defraud the United States.” In this context, the phrase “defraud the United
States” reaches “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function
of any department of Government.” For § 371 purposes, conspiracies to “defraud” generally involve

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“deceit, craft or trickery” or other dishonest means, but financial loss is not required. Rather, as one
federal appellate court put it, § 371 “not only reaches schemes which deprive the government of money or
property, but also is designed to protect the integrity of the United States and its agencies.”
Third, § 371 requires proof that the defendant had “knowledge of the conspiratorial purpose.” As one
federal appellate court has explained, this ordinarily requires the government to show that “the defendant
knew of his connection to the charged conspiracy.” This element does not require proof “that the
conspirators were aware of the criminality of their objective,” but merely “that the defendant was aware
of ‘the unlawful object toward which the agreement [was] directed.’”
Fourth, prosecutors must demonstrate that a “member of the conspiracy commit[ted] ‘at least one overt
act ... in furtherance of the conspiracy.’” An overt act is the performance of "[a]n outward, physical
manifestation" of the conspiracy, which need not itself be criminal or the element of a crime.
Conspiracy Against Free Exercise or Enjoyment of Rights, 18 U.S.C. § 241
Section 241 contains a provision that makes it a crime for “two or more persons [to] conspire to injure,
oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District
in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of
the United States.” Violations of the statute are ordinarily punishable by fines and up to ten years of
imprisonment, with higher penalties if death results (among other things). The statute, which dates to the
Reconstruction Era, is perhaps most associated with its use to prosecute bias-motivated conduct,
particularly starting in the mid-twentieth century. Federal prosecutors have also used § 241 to charge
other types of civil rights conspiracies, however, including a man convicted in 2023 of using social media
to suppress the presidential vote by spreading disinformation.
To prove a § 241 violation, the government must first show an agreement between two or more people,
which requires proof that at least two individuals came to a common understanding with a shared
purpose. As with § 371, the agreement need not be formal and can instead be established by proof of a
mere “tacit understanding.”
Second, the government must prove that the purpose of the agreement was to injure, threaten, oppress, or
intimidate, which requires proof only that the defendant specifically intended to injure, threaten, oppress,
or intimidate, not that a victim was actually injured, threatened, oppressed, or intimidated. A wide variety
of conduct may support intent to “injure, threaten, oppress, or intimidate.” Although § 241 caselaw often
involves violent or threatening conduct, other behaviors, such as conspiring to “cast false votes in an
election for federal office,” may suffice. For example, in its 1941 opinion in United States v. Classic, the
Supreme Court examined whether a predecessor statute to § 241 could apply to a conspiracy to “alter[]
and falsely count[] and certif[y] the ballots of voters cast in [a] primary election.” The Court concluded
that “conspiracy to prevent the official count of a citizen’s ballot” is “a conspiracy to injure and oppress
the citizen when the ballots are cast in a primary election.” In an earlier case, the Court reached a similar
conclusion with respect to a congressional election.
Third, the government must demonstrate that the agreement was intended to affect “any person in any
State, Territory, Commonwealth, Possession, or District.” In establishing this element, the government
need not prove that the defendant identified and intended harm to a specific victim or victims. Rather, a
§ 241 violation can occur where the defendant interferes with the rights of “a broad class of potential
victims.”
Fourth, there must be proof that the agreement was “directed towards the free exercise or enjoyment of
rights and privileges secured by the Constitution and federal law,” that is, rights “made specific either by
the express terms of the Federal Constitution or laws or by decisions interpreting them.” Typically, § 241

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prosecutions have involved deprivations of constitutional rights or rights created by statutes that are
themselves aimed at enforcing constitutional rights. Voting rights are one example covered by § 241.
A defendant in a § 241 case must also have had the “specific intent” or “particular purpose” of interfering
with the victim’s enjoyment of the federal right. The D.C. Circuit has interpreted this element as requiring
only a defendant’s intent to interfere with an activity or interest that is a protected right, not an
understanding by the defendant that the activity or interest is legally protected as a federal right.

Author Information

Peter G. Berris

Legislative Attorney

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