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It seems increasingly likely that former U.S. President Trump could face criminal charges connected to the events leading up to the Capitol breach on January 6, 2021. Just last week, he chose not to engage with the grand jury investigating the matter.
Typically, such an invitation extended to an individual, often referred to as a ‘target’, suggests that charges might soon follow. Indeed, Trump himself has alluded to the possibility of an upcoming arrest relating to the events of that day, wherein almost 150 officers of the law were injured.
An obvious question arises: If charges are indeed pressed, what form might they take? The moment an indictment is issued, we’ll have the answer to that pressing question.
One interesting avenue is the potential application of a law originally introduced as an answer to activities of the Ku Klux Klan during the period of Reconstruction. This is ‘conspiracy against rights’, as outlined in Section 241 of Title 18 of the U.S. Code.
According to that code, it’s unlawful for two or more individuals to ‘injure, oppress, threaten or intimidate’ any person ‘with intent to prevent or hinder his free exercise or enjoyment of any right or privilege’ that they enjoy under the U.S. Constitution.
Based on prevailing interpretations, any allegations of election interference by Trump and his associates could be seen as having hindered voters who cast their votes in the expectation of a fair outcome.
But the law’s wording seems to belong to a bygone era, even as it sanctions those who would ‘go in disguise on the highway’ to pressurize others.
In the event that charges are indeed forthcoming but the authorities refrain from invoking conspiracy against rights, they could instead refer to possible offenses put forth by the House Select Committee during their investigations into the January 6 event.
According to the committee, there could be evidence pointing towards incitement or support of an insurrection, interference with an official proceeding, schemes to defraud the U.S., and conspiracy to make false statements.
A few legal scholars also believe that a charge of tampering with witnesses could be on the table.
Still, it’s important to mention two things. Firstly, it remains entirely plausible that Trump might not face charges. Secondly, he appears to anticipate that he will. If that does happen, how does this potential ‘speaking’ indictment come into play?
Trump has already encountered two indictments; one in April by Manhattan District Attorney Alvin Bragg on claims of falsifying business records and another in June by special counsel Jack Smith concerning secret documents found at Mar-a-Lago. Smith also heads the ongoing January 6 investigation.
Trump has criticized Smith several times in digital posts and during campaign speeches. The charges in Manhattan and those related to Mar-a-Lago are stylistically quite distinct.
The April indictment was portrayed in a very straightforward manner by Bragg, complete with detailed statements of fact.
Conversely, the Mar-a-Lago document presentation depicted a compelling narrative of alleged disregard on Trump’s part concerning the storage of confidential documents from his presidency.
This included the revelation of the reckless storage of sensitive documents in areas such as a ballroom and a bathroom. Furthermore, details were disclosed that, if validated, might indicate a flagrant obstruction of justice.
This relates to Trump’s supposed plans to withhold documents from the authorities despite being subject to a subpoena requiring their production. Should an indictment for the January 6 event present itself, it is likely to follow the Mar-a-Lago line.
A key aspect to be revealed will be if Smith and his team have discovered any powerful, thus far undisclosed, details. Yet, when would a trial be scheduled given the 2024 campaign timeline?
There have been a couple of unprecedented aspects regarding the indictments against Trump – one of them being the timing, as he campaigns for re-election. Important news emerged on Friday regarding the Mar-a-Lago case, as Judge Aileen Cannon (a Trump appointee) announced a trial start date of May 20 next year.
This leaves room to speculate that a potential trial for the January 6 case would follow. What ensues is a politically extraordinary scenario where Trump could be grappling with multiple criminal trials while effectively securing the GOP nomination.
American politics has not witnessed a situation remotely close to that in the past. However, a potential trial and subsequent conviction would not mean an end to this saga. Like any other citizen, Trump could file an appeal. But what if he was successful in reclaiming the presidency before then? He could then instruct the Department of Justice to drop the appeal.
However, it’s worth noting that a president’s power to halt legal action doesn’t extend to state cases in the same way it does for federal ones.
This is why some observers consider the ongoing investigation into election interference in Georgia, led by Fulton County District Attorney Fani Willis, to be the most significant threat to Trump. Willis has indicated that a decision regarding charges will likely be made by mid-August.
Is it likely that Biden and the Democrats will express satisfaction if Trump is indicted? While they may take some form of private satisfaction, it is almost certain they will refrain from public declarations.
Democrats, especially those within the White House, are cautious about statements or actions that could ignite GOP accusations of politicizing the justice system. The previous indictments against Trump have been met with largely formulaic public responses from the White House and Democrats in Congress about letting the legal process run its due course.
There’s no reason to anticipate a dramatic change in their approach now. But then the question arises as to what effect an indictment could have on the 2024 election. The answer varies depending on whether you’re considering the Republican primary election or the subsequent general election.
Among Republican voters, Trump continues to be the major favorite. There’s no undeniable indicator suggesting that his past indictments have negatively affected his standing with the Republican electorate.
Contrarily, the indictments, particularly the one from Bragg, may have garnered him extra support from his base. Currently, he enjoys a significant lead over his closest competitor, Florida’s Governor Ron DeSantis, with a margin of about 30 points in nationwide polling averages.
Nevertheless, the general election may tell a different story. Trump lost the popular vote count in 2020 by over seven million votes and was often met with disapproval throughout his term, a sentiment that continues.
In recent times, polling data from FiveThirtyEight indicates an increase in Trump’s unfavorable ratings among Americans; as of Sunday evening, about 58% of the population viewed him unfavorably, compared to just 39% who viewed him favorably.
Given this backdrop, it’s hard to see how a third indictment, particularly one associated with a regrettable chapter in American history, could enhance Trump’s chances of winning back even a fraction of the vital votes necessary to retake the office of the presidency by Inauguration Day in 2025.