Former President Trump could face charges under at least three statutes in connection with his efforts to remain in power after the 2020 election, according to a review of the case by legal experts.
The analysis, offered in a model prosecution memo akin to what is typically prepared by prosecutors ahead of bringing charges, determines there is sufficient evidence to bring a case against Trump as well as several co-conspirators.
“Trump knew he lost the election but did not want to give up power, so he worked with his lawyers and others on a wide variety of schemes to change the outcome,” a group of former prosecutors and legal experts wrote in the memo published on Just Security.
“Those schemes included creating fraudulent electoral certificates that were submitted to Congress, implicating statutes such as 18 U.S.C. § 371, which prohibits conspiracies to defraud the United States in the administration of elections.”
Creating those fake electoral certificates could also implicate statutes that prohibit obstruction of an official proceeding, one of the charges also leveled at numerous rioters who entered the building, including members of the Oath Keepers and military and chauvinist group the Proud Boys.
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Some members of those groups have also been tried and convicted of seditious conspiracy, something the attorneys say “laid the groundwork for closely related insurrection charges against Trump.”
The attorneys also said that Trump could be charged under a statute that prohibits inciting an insurrection and giving aid or comfort to insurrectionists.
They write, however, that such charges would be weighed with “extreme caution” since they are rarely brought be prosecutors.
“We believe there is sufficient evidence to pursue it—as did the Select Committee in making a criminal referral of Trump under that statute—but prosecutors may make different choices,” the memo states.
The memo comes as special counsel Jack Smith and his team have in recent weeks spoken with a number of witnesses on the matter, including state lawmakers and secretaries of state, as well as Trump allies and those who served in his administration.
One of the top prosecutors on the case also appeared in a D.C. courthouse this week, fueling speculation that charges on the matter could soon follow.
Smith has already brought one federal indictment against Trump, filing Espionage Act and other charges related to Trump’s storing of classified records at Mar-a-Lago.
The prosecution memo argues that the indictment offered clues about how Smith might pursue charges against the numerous allies involved in the effort to stay in power.
“The classified documents indictment offers insight into Smith’s possible thinking here. Those charges include only one co-conspirator, a measured approach suggesting that the list of defendants in this case likewise might be a short one,” they write.
It notes the Jan. 6 Select Committee recommended the Justice Department consider charges against just a handful of people: John Eastman, the attorney who pushed for Vice President Mike Pence to reject verification of the election results, and Kenneth Chesebro, who helped develop the fake elector scheme.
The memo notes that other top aides, such as then-White House chief of staff Mark Meadows and former Trump attorney Rudy Giuliani, have spoken with prosecutors and could be cooperating in some fashion.
“Given the stature of both Meadows and Giuliani, and their apparent level of culpability in relation to the events described in this pros memo, however, we also think it unlikely that the special counsel would grant them any kind of immunity without concomitantly requiring a plea agreement,” they write.