The political world is watching closely to see if and when Donald Trump is indicted — again.
Trump announced on social media last week that he’d received a “target” letter in special counsel Jack Smith’s investigation into efforts to overturn the election. Such letters are often precursors to criminal charges, as was the case recently in Smith’s separate investigation into Trump’s alleged failure to return classified documents after leaving the White House.
A new criminal indictment would be Trump’s third, after the federal classified-documents charges last month and the hush money case brought in Manhattan in April.
While we don’t know for sure that charges are coming or when they might land, here are a few things to watch for if they do.
This is obviously the most significant aspect, as it would set the stage for everything that lies ahead.
While Smith’s investigation has often been given the “Jan. 6” shorthand, it’s important to note that there is plenty of evidence he’s not just investigating actions related to the Capitol riot that day. Charges could relate to a much broader conspiracy to overturn the election — which contributed to that day’s events but was distinct from it.
The House select Jan. 6 committee cited four potential crimes, including obstruction of an official proceeding and conspiracy to defraud the government, when it referred Trump to the Department of Justice after concluding its own investigation last year. We don’t know whether Smith has these or other statutes in mind, but it’s worth reviewing them as a starting point.
The first one, obstruction of an official proceeding, has been used extensively against Jan. 6 defendants, and it basically amounts to disrupting Congress’s certification of electoral college votes. Precisely how that might pertain to Trump is the big question. It’s readily apparent how rioters who have been charged with this offense disrupted the day’s events. With Trump, it’s possible he could be accused of having fomented the riot or having proactively failed to halt it once it began.
Conspiracy to defraud the government means obstructing a governmental function by deceitful or dishonest means. That sounds similar to the above, but it could include other efforts, such as pressuring officials in states like Arizona, Georgia, Michigan and Pennsylvania, as well as lying about widespread voter fraud.
The Jan. 6 committee included two other statutes in its referral: inciting or aiding an insurrection, and conspiracy to make a false statement. And some have raised the prospect of Trump’s being charged under a Civil War-era law making it a crime to “conspire to injure, oppress, threaten, or intimidate any person” who exercises or enjoys a protected right — in this case, voting.
A major question is how big Smith might go with his charges. Charging Trump with some kind of conspiracy would mean laying out Trump’s broader plot and how it allegedly ran afoul of the law, including things like the “fake elector” plot.
But again, Smith has given no public signals about the specific crimes he plans to charge, so for now, we will have to wait and see.
While an indictment is much-anticipated, it’s also true that we’ve already learned plenty about the efforts to overturn the election. The Jan. 6 committee held several public hearings, and it wound up producing an 800-page report and releasing transcripts of witness interviews.
But especially if the indictment does include conspiracy charges, it seems possible we’ll learn quite a bit more.
We know that Smith’s investigation has obtained interviews from key witnesses the Jan. 6 committee did not interview — some witnesses fought testifying, while criticizing the committee for being too partisan — such as former White House chief of staff Mark Meadows and former vice president Mike Pence. That committee also faced a time crunch, needing to release its final report before Republicans took over the House and shut it down. Smith has had at least eight months to probe and build upon what we learned then — and on the Department of Justice’s own investigation, launched in April 2022.
Smith and prosecutors no doubt know that they will be under withering attack from Trump and his allies, and they will be restricted in what they can publicly say until the case goes to trial, but to the extent that they can, it would probably serve them to lay out as much of the case as possible in the indictment.
A few areas where the Jan. 6 report findings were somewhat limited, and where we could learn more:
The “fake elector” plot: Specifically, do we get more evidence that it wasn’t just a contingency in case certain states overturned their election results, but rather that it was always geared toward building a pretext for Jan. 6? (Just last week, Michigan’s attorney general became the first to charge the alternate electors themselves.)The weapons: A big finding of the Jan. 6 report was that hundreds of weapons were confiscated outside Trump’s Jan. 6 speech, and former White House aide Cassidy Hutchinson has testified that Trump was told about the crowd having weapons but didn’t care. This is key because it could suggest that Trump knew how potentially dangerous the situation was, and directed his supporters to the Capitol anyway. But the Jan. 6 committee didn’t shed much light on whether the weapons claims had been confirmed.The Secret Service: Some of the other unresolved issues from the Jan. 6 committee’s report have to do with the Secret Service, and a number of agents have reportedly testified before Smith’s grand jury. The Jan. 6 committee was unable to resolve, for instance, Hutchinson’s secondhand account of Trump’s becoming irate at not being taken to the Capitol after his Jan. 6 speech.
If Trump is indicted on some kind of conspiracy charge, it stands to reason that others around him might also be indicted. Some of those who played prominent roles in all of this include Meadows, Trump lawyers Rudy Giuliani and John Eastman, and a smattering of other lawyers.
Thus far, we have no evidence that anyone else has received a target letter. But Smith doesn’t technically need to send those letters, and you could understand why people not named Trump wouldn’t be eager to disclose such things.
Smith could also indict Trump for a conspiracy without indicting others, merely naming them as unindicted co-conspirators. It’s also possible that investigations of other people might be ongoing.
The answer to this would seem predictable: They’ll criticize the charges as being symptomatic of a two-tiered justice system — without engaging on the merits of Trump’s alleged conduct. That’s certainly been the case with Trump’s hush-money indictment in Manhattan and his federal classified-documents indictment in Florida.
But more than the behavior described in those indictments, the Jan. 6 attack is something many congressional Republicans objected to in real time, even if they didn’t support Trump’s impeachment over it. They objected not just to his actions on that day, but also to his voter-fraud claims more broadly.
Jan. 6 also hit home for many congressional Republicans, given they themselves were endangered that day.
The party would rather not talk about it.
A poll in January showed that 7 in 10 Americans thought Trump bore at least some responsibility for the violence his supporters unleashed on the Capitol. Other polls have also pegged that number around two-thirds, including 3 in 10 Republicans.
And while only around half of Americans have said Trump actually did something illegal in his efforts to overturn the election, that’s more than have said the same about almost all of Trump’s other major controversies, polling has revealed.
The GOP is so committed to Trump that the party isn’t about to turn on him en masse. But how they message the issue will be telling. Do we at least see them starting to make a Nikki Haley-esque argument that maybe Trump isn’t worth all the headaches? Does an electability argument start to creep in again if we’re talking about a thrice-indicted man recently found to have committed rape?
There is little question that the Manhattan indictment appeared to benefit Trump in the GOP nominating contest. His lead has only grown since then.
But that’s not the whole ballgame. And there’s evidence that Trump scandal fatigue is creeping in among the broader electorate.
The most recent FiveThirtyEight average of Trump’s unfavorable rating is 56.5 percent. That’s the highest that number has been in more than two years — since the aftermath of Jan. 6, as it happens. (It has generally been in the low- to mid-50s.)
The peak between early 2021 and today? It eclipsed 56 percent in the aftermath of the 2022 election, when Trump-aligned candidates clearly cost the GOP some seats and quite possibly control of the Senate.
None of it means that Trump is unelectable; the likeliest 2024 race, between him and President Biden, remains competitive. But if another indictment helps sour even 1 or 2 percent of Americans on Trump — and if these issues are front and center as Trump is supposed to be campaigning — that could prove significant in the general election.