Writing for Just Security, former federal prosecutor and University of Michigan Law School professor Barbara McQuade penned a model “prosecution memo” outlining the charges that Donald Trump could face for his pressure on Mike Pence.
Leading up to Jan. 6, 2021, the former president pressed his VP to take the dramatic, and illegal, step to change the 2020 election and send the decision back to the state legislatures to decide. If it was sent back to the state legislatures in Michigan, Georgia and Arizona, their GOP legislatures would presumably override the voters and hand Trump a victory.
McQuade explained that just one of the charges Trump faces is one of many charges that he could face. While it isn't an "open and shut" case, she noted that it isn't necessary to prove whether or not Trump believed Pence had the authority to override the election. According to McQuade, Trump attempted to hold onto power even after U.S. government officials like those in Homeland Security, Director of National Security John Ratcliffe, former Attorney General Bill Barr, and the U.S. courts struck down his attempts to maintain control.
"Looking solely at this aspect of the strategy, at least two federal criminal statutes may have been violated in this episode alone: conspiracy to defraud the United States and obstruction of an official proceeding," she wrote. "Depending on the facts that emerge, other statutes may also have been violated, such as the federal voter fraud statute and seditious conspiracy. Publicly available information also indicates potential violations of state law. This report focuses solely on potential violations of federal law."
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The latter of the options, obstruction of an official proceeding, is among the charges being applied to many of the attackers of the U.S. Capitol. The conspiracy charge is what former special counsel Robert Mueller used to indict the Internet Research Agency and other Russian groups that interfered in the 2016 election. McQuade stated that Title 18 US Section 371 makes it outright criminal for Trump and anyone else to conspire to defraud the United States. Several of the books published after the Trump presidency has proven that there were several people involved, including those in the Justice Department. Such a charge could be punishable by up to five years in prison, she noted.
Even in the colloquially called "coup memo," lawyer John Eastman may have tried to craft a convincing case to pitch to Pence, but "by the end of the two-hour meeting, Eastman had conceded that having Pence reject Biden electors was not a viable plan. Eastman later denied so conceding," McQuade explained.
At that point, it should have been more than obvious that any attempt to overturn the election through pressure or violence was unsubstantiated.
"This evidence is sufficient to obtain and sustain convictions of charges for conspiracy to defraud the United States and for obstruction of an official proceeding," McQuade closed.
The elements of the offense are:
(1) the defendant entered into an agreement,
(2) to obstruct a lawful function of the Government,
(3) by deceitful or dishonest means, and
(4) committed at least one overt act in furtherance of the conspiracy. [155]
You can read her full memo at Just Security.
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