Special counsel Jack Smith may be prepared to bring charges against Donald Trump in connection with the Jan. 6 insurrection, according to a panel of legal experts, and they believe the case would be strong.
The panel -- Norman L. Eisen, Noah Bookbinder, Donald Ayer, Joshua Stanton, E. Danya Perry, Debra Perlin and Kayvan Farchadi -- assembled a model prosecution memo for Just Security to assess the federal charges Smith might potentially bring against the twice-impeached, twice-indicted former president, and they concluded the evidence meets Department of Justice standards for prosecution.
"Our memo follows a common DOJ practice," the authors wrote. "Prior to indicting a case, federal prosecutors prepare a pros memo that lays out admissible evidence, possible charges, and legal issues. This document provides a basis for prosecutors handling the case and their supervisors to assess whether the case meets the standard set forth in the Principles of Federal Prosecution, which permit charges only when there is “evidence sufficient to obtain and sustain a conviction.”
"Here, we conclude there likely is sufficient evidence to obtain and sustain a conviction of Trump for his three-step plan to overturn the election," they added.
Trump worked with his lawyers to overturn an election he knew he had lost, which they said constitutes a conspiracy to defraud the U.S. in the administration of elections, and after those schemes failed they tried to obstruct an official proceeding by attempting to block certification of Joe Biden's win or delay the electoral count -- but then-vice president Mike Pence refused to act on that plan.
"When Pence refused, Trump went to his last resort: triggering an insurrection in the hope that it would throw Congress off course, delaying the transfer of power for the first time in American history," the authors wrote. "This implicated statutes such as 18 U.S.C. § 2383, which prohibits inciting an insurrection and giving aid or comfort to insurrectionists."
That law is rarely charged and would require extreme caution by the DOJ, the legal experts said, but they believe, as did the House Select Committee, there is sufficient evidence to charge Trump under that statute.
"We cannot with certainty say when any charges will be filed, but there is reason to anticipate it could be as soon as this summer," they wrote. "Smith is as aware as anyone of the political calendar. The primary season is already commencing and will take off in earnest after Labor Day. That favors an indictment this summer, as is also suggested by news reports that Smith did not permit witnesses scheduled for June 2023 grand jury testimony to delay their appearances."
An indictment this summer would also allow a trial to commence before the July 2024 Republican National Convention, and the legal experts believe Smith might want to bring charges before Fulton County district attorney Fani Willis potentially indicts Trump in Georgia.
"Willis ... has been overseeing a special grand jury investigation of Trump’s attempt to interfere with the 2020 election in Georgia, has announced her intention to make charging decisions in that case between the middle of July and September 1, with a narrower window expected in mid-August," the authors wrote. "Smith may wish to file charges before Willis does, since by doing so he can make his theory of the case public, minimizing the risk of a conflicting Fulton County indictment that could complicate the federal case."
