Once is an accident, twice is a coincidence and three times is a conspiracy.
Former U.S. President Donald Trump is accused by federal prosecutors of engaging in three major conspiracies ahead of the Jan. 6, 2021, Capitol riot to subvert the process of counting and certifying the vote before Congress in his bid to hold on to power despite having lost the 2020 election to Joe Biden by a 306-232 margin in the Electoral College and more than 7 million votes, or 4.5 percentage points, in the popular-vote count.
While spreading lies about how votes had been illegally cast, tampered with or miscounted in order to build mistrust among the public about the election’s outcome, Trump and a group of six unnamed lawyers and advisers, according to special counsel Jack Smith, plotted to illegally meddle with the very basis of how presidential elections have been run in the U.S since its founding.
A four-count indictment unsealed in federal court in Washington on Tuesday alleges that the group worked unrelentingly to tamper with how several states counted their ballots and the process by which states sent electors to Washington to finalize their vote. The indictment also accused Trump of pressuring the Justice Department and Vice President Mike Pence to intervene even though they had no standing to do so.
“Each of theses conspiracies — which built upon the widespread mistrust the defendant was creating through pervasive and destabilizing about election fraud — targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election,” according to the indictment.
Trump has dismissed the charges as politicized.
“The lawlessness of these persecutions of President Trump and his supporters is reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes,” a statement released by his re-election campaign read. “President Trump has always followed the law and the constitution, with advice from many highly accomplished attorneys.”
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The charges allege three acts of conspiracy and one of obstructing an official proceeding. Following are the main legal arguments Smith makes against the former president.
‘We have lots of theories’
Prosecutors say that, starting almost immediately after the election on Nov. 3, 2020, Trump began a campaign to get officials in key states such as Arizona, Nevada, New Mexico, Pennsylvania, Michigan, Wisconsin and Georgia to overturn the results of the presidential votes in their states.
Trump pressured state officials to throw the vote out based on allegations ranging from dead people voting to noncitizens casting ballots, and from voting machines being tampered with to ballot-box stuffing — despite there being no evidence any of it had occurred, certainly on an election-determinative scale.
“We don’t have evidence, but we have lots of theories,” one of Trump’s co-conspirators allegedly told the speaker of the house in Arizona, a Trump backer, when asked what proof existed about electoral malfeasance.
When officials in the states refused to go along with Trump’s request to decertify the results, the president continued to publicly trumpet false claims about voter fraud and to attack local officials as “terrible people” who were in on the fraud, the indictment said.
Smith said that Trump continued to make the claims despite having been told repeatedly by numerous people from multiple agencies — many of them Trump’s own supporters — that there was no truth to that narrative and despite having lost case after case in court.
“When our research and campaign team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0-32 on our cases,” one senior campaign adviser said, according to the indictment. “It’s tough to own any of this when it’s all just conspiracy sh— beamed down from the mothership.”
Smith argues that this effort amounted to using deceit to subvert the election’s result, which is against the law.
Phony electors
One key component of the conspiracy case against Trump revolves around efforts to create a competing slate of electors from each challenged state.
As part of the presidential electoral process, every state sends electors to Washington to deliver the statewide election result to Congress. It’s a mostly ceremonial procedure, but Trump’s legal team is accused of hatching a plot to send a second group of electors who backed Trump from several states in order to create confusion in Congress and force legislators in Washington to have to debate the election’s outcome.
The secondary slates of electors hadn’t been approved by officials in the states they purported to represent and were not authorized in any way, the indictment says. The effort was so patently bogus that Trump’s team even referred to the group as “phony electors” in their own correspondence, the indictment stated.
In the indictment, Smith characterizes the effort as a conspiracy to commit fraud.
‘You’re too honest’
A third leg of the conspiracy allegedly involved pressuring officials at the Justice Department and Pence to intervene in the election even though they had no standing to do so.
The indictment says Trump and his co-conspirators repeatedly communicated with the then–acting U.S. attorney general, Jeffrey Rosen, and insisted that he declare ahead of the Jan. 6 certification of the election by Congress that there had been evidence of fraud.
When Rosen said he would not do that because there was no such evidence, Trump allegedly threatened to replace him with one of the unnamed co-conspirators included in the indictment.
At one point, a deputy White House counsel told the alleged co-conspirator that “there is no world, there is no option in which you do not leave the White House” and warned that there would be “riots in the streets” if Trump attempted to remain in office, to which the co-conspirator allegedly said: “That’s why there is an Insurrection Act.”
For weeks ahead of the Jan. 6 certification hearing in Congress, Trump and his cohort pressured Pence to refuse to certify the vote tally, a purely ceremonial task the sitting vice president has presided over since the country’s founding.
Pence steadfastly refused to do so, saying his legal team had told him there was no constitutional basis for the vice president to be able to overturn an election at the last minute. In a phone call less than a week before Jan. 6, Trump allegedly berated Pence, telling him, “You’re too honest.”
When a senior White House adviser told one of the unnamed co-conspirators that if Pence tried to overturn the election it would lead to violence in the streets, the co-conspirator allegedly said that there had been times in the country’s history where violence was necessary to protect the republic, the indictment said.
In the days and hours leading up to the Jan. 6 riot, Trump posted several messages on Twitter stating that Pence had the authority to overturn the election and continuing to pressure him to do so.
Exploiting the chaos
On Jan. 6, after Pence issued a statement saying he did not have the authority to choose not to certify the vote, demonstrators near the Capitol turned violent, with hundreds of rioters clashing with police and storming the complex, delaying the proceedings for several hours.
During the standoff, some of Trump’s co-conspirators tried to reach Trump-aligned members of the House and Senate to convince them to further delay the certifying process in order to buy more time to convince state legislatures to nullify their already-approved votes, the indictment says.
Later that afternoon, Trump tweeted: “See, this is what happens when they try to steal an election. These people are angry. These people are really angry about it. This is what happens.”
