The Charges Against Trump for Conspiring to Overturn the Election (2024)

This transcript was created using speech recognition software. While it has been reviewed by human transcribers, it may contain errors. Please review the episode audio before quoting from this transcript and email transcripts@nytimes.com with any questions.

From “The New York Times,” I’m Michael Barbaro. This is “The Daily.”

[MUSIC PLAYING]

On Tuesday afternoon, Special Counsel Jack Smith filed criminal charges against former President Donald Trump for his wide ranging attempt to overthrow the 2020 election.

My colleague, Luke Broadwater, talks us through the historic indictment and the evidence it lays out that Trump waged an illegal conspiracy to remain in power.

It’s Wednesday, August 2.

Luke, we are talking to you at 8:30 PM or so on Tuesday night. It’s been about three hours since Donald Trump was indicted. And it’s pretty strange to speak of indictments against a former president as routine. But when it comes to Trump, they have become strangely routine. This is number three in just the past few months.

Yeah. We’ve never seen anything like it in American history. That’s something we often say when we’re talking about the Trump presidency or Donald Trump, in general. But, yes, this is the third indictment of a former American president who is his party’s leading candidate to run again for the White House. And this indictment is probably the most consequential of them all, certainly in terms of the magnitude of the allegations. And that is the effort to overturn the 2020 election that culminated with the January 6 storming of the Capitol.

Right. And while on one level it’s not surprising that these charges are being brought given everything we’ve learned from, for instance, the January 6 Congressional Committee’s investigation. On another level, it is surprising that these charges are being brought against Trump. Because it was always very unclear whether the former president’s role in everything leading up to January 6 would meet the very high legal bar of criminality. And, clearly today, the Department of Justice is saying it does meet that bar.

Yeah, that’s exactly right, Michael. I mean, January 6 happened 2 and 1/2 years ago. And a lot of observers, especially Democrats, thought Donald Trump should be charged immediately. That didn’t happen. And for a long time the only people who were getting charged in connection with January 6 were low-level rioters. And no political actors were being held accountable.

And, you know, a lot of political observers and legal observers thought, well, maybe this case will never break into the political realm, to people like Donald Trump and his top lieutenants. Maybe it’s just too hard of a case to make that the attempts to overturn the election were perhaps unethical but not illegal. And what happened today was the Justice Department said, absolutely not. Those were crimes, and they were very specific and serious crimes.

So then what is the Special Counsel’s legal case as established in the indictment against Donald Trump? And just to start, I wonder if you could actually read from some of the actual indictment itself.

Sure. So the case is the United States of America versus Donald Trump. And at the top it says, “The defendant, Donald J. Trump, was the 45th president of the United States and a candidate for re-election in 2020. The defendant lost the 2020 presidential election. Despite having lost, the defendant was determined to remain in power. So for more than two months following election day, on November 3, 2020, the defendant spread lies that there had been an outcome determinative fraud in the election and that he had actually won.

These claims were false, and the defendant knew that they were false. But the defendant repeated and widely disseminated them anyway to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”

Right. None of which feels like entirely new information, but walk us through precisely what Trump has been charged with here in this indictment, the actual charges.

Right. Well, there are four charges. The first is conspiracy to defraud the United States. The second is conspiracy to obstruct an official proceeding. That refers to the official proceeding of Congress that was taking place when the mob stormed in the building. The third is obstruction of an attempt to obstruct an official proceeding. And the fourth — and this is an interesting one — is a conspiracy against rights. This is a deprivation of rights under the color of law. This is an old code that was introduced after the Civil War, basically to prevent the KKK and other racists of blocking Black people from going to the polls and interfering with an election.

Hmm. So this fourth charge accuses the president of denying or seeking to deny Americans their franchise, their right to vote in 2020.

Yeah. I was just talking with Jamie Raskin, one of the members of the January 6 Committee about this. And he highlighted that charge to me as we were speaking. Because he said, look, this was an attempt to basically throw out millions and millions of American votes to change the outcome of an election. And if that isn’t a major assault on the voting system in America, then he doesn’t know what is. So he felt that that was a particularly important charge to highlight.

Interesting. And how does this indictment end up explaining and justifying these four charges? Does it link the charges to specific evidence?

So the indictment isn’t set up quite like that. It doesn’t list specific facts for each of the specific charges. What it does do is lay out one grand narrative about Donald Trump’s conduct, and then assert that this conduct violates those four criminal counts. And it starts off, interestingly enough, by saying Donald Trump’s attempts to fight the election results started legally — that he has a right as a contestant in an election to make claims about the election results.

He even has a right to make false claims or even lie about the results — that that, by itself, isn’t a crime. And he had a right to try to challenge the results in court. And Mr. Trump did. He filed more than 60 lawsuits. But then it says what he didn’t have a right to do is, after he knew it was a lie and after he had failed in court repeatedly, he didn’t have a right to then launch a criminal conspiracy to overturn the results of the election through illegal means. That’s when the Justice Department says it became a crime.

I’m curious what elements of that grand narrative written into this indictment stand out to you, Luke.

Well, anybody who watched any of the January 6 Committee hearings or read any part of the report, or frankly, even read a newspaper, probably is familiar with some parts of this indictment. So the indictment really focuses on a five-step plan of Donald Trump and his co-conspirators to stay in office. And the first is a pressure campaign that was launched against state and local election officials to try to get them to throw out votes for Biden, to maybe switch votes, to do whatever they could to get Donald Trump to win those states or win those counties.

The second is a scheme that the January 6 Committee called the fake elector’s scheme. And that is a plan that was put into action by Donald Trump’s lawyers in which they organized slates of electors in states that had been won by Joe Biden. And those people then met and pretended that Donald Trump had won those states. And they filled out forms falsely asserting that Donald Trump was the true winner of those states. And then they sent those forms to Congress with the hopes that Mike Pence would accept them and use that evidence to overturn the results in Congress and award the election to Donald Trump.

The third way Donald Trump tried to cling to power — and this is also laid out in the indictment — is he tried to use the power of the Justice Department as part of this whole scheme. There was an effort by a gentleman named Jeffrey Clark, within the Justice Department, to send a false letter to state officials that would say that the Justice Department had found fraud in these states and that, therefore, they should stand down from certifying these election results. And so that letter, if it had gone out, would have been a completely false letter that would have been used to manipulate the election results through the power of the Justice Department.

Right.

The fourth example that the indictment alleges is that Donald Trump pressured his own vice president to delay certification of the election in Congress or even throw out the results of the election. And there’s some testimony in this indictment that I hadn’t seen before — it wasn’t in the January 6 Committee report — but that in a heated debate over this that Donald Trump says to Mike Pence, you’re too honest.

Hmm. When Pence says, I don’t want to do this thing you want me to do, not certify the results of the election, Trump’s response to his vice president is you are too willing to follow the rules.

Yes, that Mike Pence, you’re a boy scout. You always listen to the rules. You’re too honest. You should just go along with me in this plan so that we can stay in office and stay in power.

And what is the fifth and final part of this Trump plan that the indictment cites?

The final part of the plan brings us to the day of January 6 itself, when a mob of Trump supporters stormed the Capitol building. And what it alleges is that Donald Trump not only doesn’t try to stop them, but he essentially encourages them on and attempts to use the violence and the unrest at the Capitol as a way to halt certifying of the election results and to cling to power, to stay in office.

Hmm. From what I’m hearing you say, the indictment doesn’t accuse Trump or doesn’t seem to be all that focused on the idea that Trump incited the January 6 riot. Is that correct? It’s, instead, more focused on the idea that once the riot was underway he tried to turn it into yet another way to avoid a transfer of power.

Yeah. I think most laypeople, when you think of January 6, a lot of people have been looking for the smoking gun when Donald Trump directed the Proud Boys to attack or something like that. And this indictment is saying that doesn’t exist. We don’t need that. All you need to do is prove that he tried to obstruct Congress on January 6.

Hmm.

And he did it through multiple ways. And one of them was once the violence is underway, he attempts to take advantage of that violence to delay the proceedings and stay in office.

So taken together, these five actions established in the indictment, they amount, it says, to an illegal conspiracy to defraud Americans into thinking the election was fraudulent — which it wasn’t — block the transfer of power, and ultimately overturn the election.

Right. And the thing that really is a thread through all of them is the deceitfulness that’s alleged on behalf of Donald Trump. The indictment lays out example after example where they say former President Trump deliberately disregarded the truth. And it includes examples where he’s told by his most trusted advisors that there is no widespread fraud.

He’s told by Vice President Mike Pence. He’s told by the senior leaders of the Justice Department. He’s told by the Director of National Intelligence. He’s told by Homeland Security. He’s told by senior White House attorneys, state officials, state legislators, state and federal courts. Over and over again, the indictment lays out example after example in which Donald Trump is told that he lost this election and there was no widespread fraud. And so it concludes that he knew he was lying about the election results but he continued to do so anyway.

Which, quite importantly in a prosecution, establishes intent — intent to defraud, intent to obstruct.

Absolutely. If the allegation is he defrauded the American people, then his intent is very important element of that charge.

[MUSIC PLAYING]

We’ll be right back.

So, Luke, how strong does the legal case laid out in this indictment appear to be, based on what’s in the indictment and based on all the reporting you have done about this alleged conspiracy to overturn the election?

Well, we know that Donald Trump will fight this indictment vigorously. He’s already started to attack the integrity of Jack Smith, the integrity of the Justice Department. But he’s going to be facing, in some ways, an uphill battle. This case is going to be tried in Washington, DC, where the alleged crimes took place, and where Jack Smith filed these charges.

Donald Trump is not popular in Washington, DC. And, in fact, many people who live in DC remember the events of January 6 quite well. They remember the city in turmoil that day. They remember the National Guard coming in, and the fences being put up around the Capitol, and it being closed off to the public for so long. So he’s not going to have the most favorable jury poll to start with.

The other thing I would say is, in speaking with members of the January 6 Committee who investigated this case before Jack Smith, many of them are federal prosecutors or former federal prosecutors. And it was their opinion that they had the facts and the evidence to charge Donald Trump months ago, and that they would have a strong case. And in that time, Jack Smith has only built an even stronger case. Because he has gotten testimony from top people who the January 6 Committee could not get to testify before them. So he’s gone deeper and broader than even the January 6 Committee could go.

Now, what’s interesting is much of that material is not in this indictment. This indictment is only 45 pages long. The January 6 Committee report was 845 pages long. So we know Jack Smith is sitting on evidence that he has not used in this indictment.

Why would he do that, though, Luke? Why would he keep it out of the indictment?

Well, that may be a strategic decision. In presenting a case, you want to have a simple, clean narrative that’s easy for the public to understand, that’s easy for a court to understand. And keep in mind, a prosecutor can always bring a superseding indictment, which is essentially an updated indictment with even more evidence and even more damning accusations. And we actually saw this prosecutor, Jack Smith, do this in the documents case against Donald Trump just a few days ago.

So it’s quite possible that Jack Smith could bring more charges at a later date, and that he’s continuing to work on it. And one thing that leads me to believe that is that in this indictment Jack Smith made the conscious decision not to charge or name six co-conspirators to Donald Trump. So he lists six people that we in the media know who they are because we’ve been investigating the case. But Jack Smith chose not to name them. He chose not to charge them.

And what I believe, after talking to legal observers, is those people are now going to have some tough choices to make. They’re going to have to decide whether they want to cooperate with Jack Smith’s investigation or whether they want to fight the investigation and risk criminal charges. So I fully expect there to be more shoes to drop in this case and potentially more indictments down the line.

So perhaps what’s happening here is that the special counsel is working behind the scenes on a much more damning version of this indictment than the spare one we have seen tonight, and that one may only get stronger and stronger as he invites these co-conspirators into his office and asks them to give even more evidence against Trump. And the implied threat here if they don’t is, look, I just indicted the former president. So you better believe I’m willing to indict you. So give me even more information that will just strengthen my case against Trump.

That could be the strategy. Take Rudy Giuliani, for instance. He’s clearly co-conspirator number one in the indictment. One strategy for Jack Smith could be to invite Rudy Giuliani in and say, why don’t you tell me some things about Donald Trump that I don’t already know. And in exchange for that, maybe you won’t be charged. So that is definitely one path Jack Smith could go down with these six co-conspirators who are not yet themselves facing any criminal charges.

Really interesting. So at this moment, given what’s laid out in this indictment, what kind of penalty could Donald Trump face if ultimately, after a trial in Washington, DC, he is convicted on these four charges?

Well, he faces a very significant prison sentence. Two of the counts against him carry up to five years in prison, and two of them carry up to 20 years in prison. So he does face the potential right now of decades in prison.

Right. By my math, perhaps up to 50 years in prison. I’m curious. Would any of these charges disqualify Trump, if he’s convicted of them, from actually serving as president?

That’s a very interesting question, Michael. My first point on that would be not on its face. He’s not charged with sedition. He’s not charged with insurrection. The 14th Amendment has a ban on insurrectionists holding public office.

That said, were he to be convicted in connection with attempting to overturn the 2020 election, one could see legal challenges saying that conviction disqualifies him from holding office. That’s still an open legal question. But that said, if Donald Trump does regain the presidency, he can appoint a new attorney general. And he can direct that attorney general to drop the charges against him.

Hmm. Luke, I want to end by returning in a way to where we began, which was the reality that this is the third indictment against Trump — the most important by almost every measure, but the third. And that raises an important question about fatigue. A lot of Americans will hear about this and say, “Another Trump indictment?”

And we always kind of understood this, the reality that the previous indictments and their focus on things that are arguably less important — hush money payments and classified documents — that might dilute the power of an indictment that was arguably far more important over an effort to overturn an election. Does it feel like that is now possibly the case, that because this has arrived as the third indictment, that many Americans may kind of shrug?

I think that’s probably true for some people. I think there are some people in the country who will look at this as yet another attempt by the Feds or Democrats or the deep state to go after Donald Trump. But I want to tell you a story from the courthouse in Miami, when I was down there covering the charges against Donald Trump over mishandling classified documents. And I was talking with a man, and he was out there because he wanted to see Trump held accountable.

And as we were talking, actually, tears got in his eyes and he started to cry. Because he said, this is great what they’re doing with the documents case. Like, I’m glad they’re charging this. But what about when he tried to destroy our democracy? What about when he tried to overthrow what we know America to be as a country? What about that?

And I think that’s a question on a lot of people’s minds. You see these other cases getting charged and you think, well, what about when they stormed the Capitol, and what about when he wouldn’t leave office. And for a lot of Americans, this is the worst thing Donald Trump did in office. Especially, a lot of Democrats view it that way. And they want to see him held accountable for what they think was a full-throated assault on American democracy.

And with this indictment today, for them, that has now happened.

Well, Luke, thank you very much.

Thank you, Michael.

[MUSIC PLAYING]

Trump is scheduled to be arraigned on the four charges brought by the Special Counsel, at 4:00 PM on Thursday, inside a federal courthouse in Washington.

We’ll be right back.

Here’s what else you need to know today. In a sign of how Trump’s legal problems could hamper his campaign, “The Times” reports that his Political Action Committee, which began last year with $105 million, now has less than $4 million left after paying tens of millions of dollars in legal fees for both Trump and his associates.

The committee’s finances are so dire that, in an unusual move, it has requested a refund for a $60 million donation that it made to a pro-Trump Super PAC which, unlike his regular PAC, can spend money to promote his candidacy. The $60 million donation was intended to pay for ads on behalf of Trump. But for now, it seems his legal bills are a bigger priority.

And, as of Tuesday, American consumers can no longer purchase most incandescent light bulbs, marking the end of a technology first patented by Thomas Edison in the late 1800s. Sales of the bulbs are now banned under new energy efficiency rules, which seek to transition the country to LED bulbs, which require less electricity, last far longer, AND as a result, lower the country’s emissions of greenhouse gases.

Today’s episode was produced by Stella Tan and Rikki Novetsky, with help from Will Reid. It was edited by Rachel Quester with help from Paige Cowett, contains original music by Marion Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly.

That’s it for “The Daily.” I’m Michael Barbaro. See you tomorrow.