Jurisprudence

Yes, Donald Trump Is at Significant Risk of Federal Prosecution

A close-up of Trump's face doing his lip bite thing and looking nervous.
Former U.S. President Donald Trump speaks during the America First Agenda Summit, at the Marriott Marquis hotel July 26, 2022 in Washington, DC. Drew Angerer/Getty Images

Just one week after the Jan. 6 House Select committee wrapped up a set of summer hearings that exposed Donald Trump’s deep culpability for the events of Jan. 6, things have started to look much worse for the former president. On top of the Congressional inquiry, the start of the week brought fresh reporting that a federal grand jury is accelerating its probe into Trump’s attempt to overturn the 2020 election.

On Tuesday, the New York Times broke a story disclosing important emails and admissions about the scheme to submit “fake electors” to Congress that the 2020 Trump campaign, Rudy Giuliani, John Eastman, and their lawyer-friends ran in six battleground states (plus New Mexico) after losing the election. Not to be outdone, the Washington Post published a scoop a few hours later confirming that the Department of Justice has turned to directly investigating Trump’s actions.

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The Post reports that the scope of the grand jury inquiry includes the fake electors scheme, Trump’s direct involvement in it, and his efforts to press Vice President Mike Pence to utilize those phony certificates as part of a plan to overturn the election. The publication also noted that there was a parallel track to the investigation “that could ultimately lead to additional scrutiny of Trump.” That track would expand on the seditious conspiracy and conspiracy to obstruct a government proceeding probe that has already resulted in indictments against the leader of the Proud Boys and Oath Keepers. According to the Post, investigators are now not just looking at “individuals who stormed the Capitol on Jan. 6,” but also scrutinizing those who “were allegedly involved in planning the day’s events.”

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The Post’s confirmation matters, even though, to quote a line from Hamlet, “There needs no ghost, my lord, come from the grave to tell us this.” It has been obvious, and we have said so in Slate for many months, that Donald Trump is at significant risk of federal prosecution—as he should be, given the evidence now in the public record.

The latest revelations about the fake electors go to the scheme that appears to be at the core of the federal inquiry. The aim of the plot was to create a false conflict between competing electoral slates in the key battleground states in question. The apparent goal was to provide a pretext for Vice President Pence or Congress to reject or delay its Jan. 6 electoral certification of President Joe Biden’s election.

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The new evidence that seems liable to land people in the pokey involved emails from Jack Wilenchik, an Arizona lawyer, who was evidently part of the scheme. According to the Times, Wilenchik actually used the words “fake electoral votes” and “fake” votes in a December 2020 emailed message to Boris Epshteyn.

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Epshteyn, a long-time Trump ally, was strategic adviser to the 2020 campaign who allegedly coordinated the bogus slate plot for the campaign. The Times reported that he was a go-between for Rudy Giuliani and John Eastman.

Wilenchik wrote Epshteyn: “We would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted.”

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Then, trained lawyer that Wilenchik was, he soon attempted to correct course in a follow-up email—though not particularly successfully. He wrote that “‘alternative’ votes is probably a better term than ‘fake’ votes,” inserting a smiley face for good measure. Unfortunately for Mr. Wilenchek, an emoji defense would not hold up in court here.

Further digging the hole, Wilenchik said the votes in the fake electors plot “aren’t legal,” writing: “[The] idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren’t legal under federal law—because they’re not signed by the Governor); so that members of Congress can fight about whether they should be counted on January 6th.”

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We suspect that DOJ prosecutors already have all of these emails. But if not, they surely laughed out loud when they read the New York Times on Tuesday. It’s hard to find better evidence that someone participated in a scheme he knew was “fake” with electors whose votes “aren’t legal” than having that person write it down, and then memorialize his realization, on the record, that he should stop making a record of this knowledge.

That’s what prosecutors call evidence of “consciousness of guilt.” It can be quite helpful in proving an accused person’s criminal knowledge and intent, a necessary element for conviction.

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While Trump did not send or receive these documents, from a culpability perspective, he did not need to. To establish guilt for a conspiracy, one needn’t show every member’s criminal intent or knowledge as to every part of the scheme. In fact, the Jan. 6 Committee has introduced startling evidence that Trump was behind the plot, including the testimony of Republican National Committee Chairwoman Ronna McDaniel and others revealing Trump’s direct efforts to recruit potential false electors.

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Which brings us to the most probable potential crimes: Conspiracy to defraud the United States and obstructing an official proceeding in Congress, including using the phony certificates. A federal judge found that Trump and Eastman likely committed these crimes even before the Jan. 6 hearings, and the evidence for that only deepened during those proceedings.

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Convicting a defendant of conspiring to defraud the United States requires proof of an agreement to participate in a deceptive scheme to deprive the government of its lawful functions—such a scheme is one with false or dishonest means and an intent to deceive. “Fake electors” that have not been certified according to a state’s procedures, “aren’t legal,” and that are without a certified vote count supporting them would qualify as deceptive means.

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In this case, the evidence for proving the crime of conspiring to obstruct an official proceeding would overlap with the above elements. The requirement in such cases to show that the defendant obstructed the proceeding “corruptly,” meanwhile, calls for identical proof of a purpose to act improperly and wrongfully.

That’s where a key development from earlier in the week (that the Post also relied upon for its blockbuster) fits in. ABC News reported that Pence’s former top aides, chief of staff Marc Short and counsel Greg Jacob, both testified before the Justice Department’s grand jury looking into the efforts to promulgate a “quiet” coup without violence on Jan. 6.

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Short testified to the Jan. 6 committee that Pence repeatedly told Trump that the vice president could not lawfully reject or delay the Jan. 6 Congressional certification of Biden’s victory.

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Like Short, Jacob was part of a January 4, 2020, White House meeting between Trump, Pence, and Eastman in which Eastman tried unsuccessfully to persuade Pence and Jacob to go along with Trump’s scheme. Jacob testified that in the meeting, under questioning, Eastman acknowledged that his proposal violated the Electoral Count Act.

Trump was present to hear that admission. Knowing that his own lawyer believed the scheme unlawful would be powerful evidence of his corrupt intent were the case to reach Trump. This is especially true given that Trump continued to pursue the scheme by egging on his riotous followers inside the Capitol on Jan. 6 when he tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country.”

Attorney General Merrick Garland has recently redoubled the resources devoted to the Jan. 6 investigation. That—plus the rest of the day’s breaking news—signals that Garland meant exactly what he said on Tuesday when NBC’s Lester Holt asked him about prosecuting the former president: “We intend to hold everyone, anyone who was criminally responsible for the events surrounding January sixth, for any attempt to interfere with the lawful transfer of power from one administration to another, accountable. That’s what we do.”

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