The insurrection on Jan. 6, 2021—in which an estimated 2,000 followers of Donald Trump smashed through doors and windows at the Capitol, battered police, broke into congressional offices, and chanted for the death of elected officials—was the most visible moment of the violent fascism at the heart of the Trump movement. So it’s understandable that the investigations going on in Washington, D.C., under special counsel Jack Smith and in Georgia under Fulton County District Attorney Fani Willis often get shorthanded as “Jan. 6 investigations.”
However, both are about a lot more than what happened on the steps and in the hallways of the Capitol. They’re about a months-long systematic effort to degrade faith in our country’s electoral system. They’re about an effort to degrade the function of elections at both the state and local levels. They’re examining a scheme to defy election laws, conspire against the Constitution, and place one man in a dictatorial role completely at odds with the basic ideas of democracy.
And key to all of this was the desire to suppress the vote of Black Americans. That effort came before, during, and after Election Day—and it could lead to some of the most serious charges against Trump and his cronies.
Last week, Trump reported that he received a target letter from Smith’s office informing him that he is a focus of the grand jury investigation in Washington, D.C. Such a “target letter” closely precedes indictment in many cases. Trump was given another target letter by Smith in connection with the Florida grand jury that indicted him on 37 felony charges related to theft and retention of national security documents.
The time elapsed between Trump’s receipt of that first letter and his indictment isn’t clear. Though the letter became public just over a week before Trump’s official indictment, it’s possible he had it for several weeks in advance. In the case of the Washington grand jury, Trump claims he received the letter around July 15. A resulting indictment could come at any time, but might be expected within the next two weeks.
Meanwhile, a lengthy investigation has been ongoing in Fulton County, Georgia, supervised by DA Willis. In that case, Willis initially seated a special purpose grand jury which had the authority to investigate, but could not authorize indictments. Now that this jury has been replaced by an ordinary grand jury, indictments could come soon. Willis has previously warned local officials to prepare for possible disruptions and the need for additional security related to an indictment that could come between July 31 and Aug. 18.
Put them together, and it’s likely that Trump will face indictments in both cases over the next two to three weeks. Federal indictments could come as soon as this week.
A New York Times article looking at the potential charges examined three of the charges that Smith is said to be considering. The biggest slam-dunk charge is “corruptly obstructing an official proceeding.”
Both the House committee that scrutinized Jan. 6 and a federal judge in California who intervened in its inquiry have said that there is evidence that Mr. Trump tried to corruptly obstruct Congress’s session to certify Mr. Biden’s Electoral College victory. Under Section 1512(c) of Title 18 of the United States Code, such a crime would be punishable by up to 20 years in prison.
Just about any aspect of the scheme—whether it’s working to push those slates of false electors in multiple states, the phone calls to state and local officials, or the meetings to pressure Mike Pence into refusing to acknowledge Joe Biden electors—would seem to serve as evidence of this crime. In fact, it wouldn’t be surprising to see multiple instances of this charge. And, as with many of these charges, conspiracy to commit this crime is also a crime. Expect that to appear on the list of indictments.
Likewise, Georgia laws against election fraud and election interference are likely to feature repeatedly in any outcome from the Fulton County investigation. However, the repeated instances in which Trump, his supporters, and members of his campaign staff tried to pressure Georgia officials may result in racketeering charges.
The second big set of charges is likely to involve making false statements and conspiracy to defraud government officials and investigators. This would apply directly to Trump, to legal staff that pressed lawsuits using information they knew to be untrue, and to Trump campaign efforts to convince local election boards, state officials, and state legislators to alter the outcome of the election on the basis of false claims of election fraud.
Smith’s team has also spent time looking at how Trump turned his false claims of election fraud, and his efforts to overturn the rightful outcome of the election, into a fundraising effort. That could land him multiple charges of both wire and mail fraud. Some of these could also apply in Georgia, though it’s not clear they’ve been part of Willis’ investigation.
It’s unlikely that Trump will face any charges directly related to inspiring the violence on Jan. 6, as a series of Supreme Court rulings have made it extremely difficult to find someone guilty of such a crime unless they include specific calls to immediate violence.
However, the potential charge that surprised some of Trump’s most frequent biographers at the Times was violation of 18 U.S. Code § 241 – Conspiracy against rights.
This is a Reconstruction Era-law put in place specifically because of the violence that was visited on Black Americans who attempted to vote or otherwise take part in elections in the wake of the Civil War. In Trump’s case, it could specifically apply to his attempts to target the vote in certain locations—like Fulton County, Georgia—with higher Black populations. There’s a reason Trump made false claims of fraud in areas like Detroit, Atlanta, and part of Pennsylvania, and the pattern is not hard to detect.
More recent rulings have also suggested that the law can apply to all voters. So any of Trump’s efforts to invalidate Biden electors could be seen as violations of this law. In fact, this law has already been upheld as a charge against some of those who took part in the Jan. 6 insurrection, suggesting that it’s more than applicable to Trump.
The scope of the investigations in Washington, D.C., and Fulton County go well beyond the events of Jan 6. In a way, that day is like a mushroom: It’s just the visible part of a much larger structure hidden away beneath the surface.
What we already know about events at the national level, and within Georgia, shows how Trump and his supporters engaged in an effort to overturn the election results that really began with attempts to intimidate voters and officials before and after the election. From sending armed men in camouflage to watch polling stations, to screaming supporters surrounding election officials, to events that took place in the Oval Office and inside the chaotic Capitol, Trump and his team did everything they could not to win an election, but to break democracy. However, it’s certain that both Smith and Willis know a lot more about Trump’s actions than has been made public to this point.
These indictments should give us some idea of how democracy fights back.
