In Third Criminal Indictment, Donald Trump Charged by Justice Department Over Jan. 6 Role

Former President Donald Trump attends a Farmers for Trump campaign event at the MidAmerica Center on July 07, 2023 in Council Bluffs, Iowa. (Scott Olson—Getty Images)

Donald Trump was criminally indicted for a third time on Aug. 1 as a Washington grand jury voted to prosecute the former President on four counts related to his efforts to remain in power after losing the 2020 election and his role in the events leading up to the Jan. 6, 2021 storming of the U.S. Capitol. The prosecution sets up yet another complicated and explosive legal battle as Trump vies for the 2024 Republican presidential nomination. 

The latest indictment, which the Justice Department announced Tuesday and references six unnamed co-conspirators, follows an investigation that stretched almost eight months by Special Counsel Jack Smith, whose team had interviewed dozens of prominent figures in Trump’s orbit, including former Vice President Mike Pence, over Trump’s efforts to disrupt the peaceful transition of power on Jan. 6. The four charges include conspiracy to defraud the government, conspiracy against the right to vote, conspiracy to obstruct an official proceeding, and obstruction of an official proceeding.

“Each of these conspiracies—which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud—targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election,” the indictment says.

In a Truth Social post published shortly before the DOJ announced the charges, Trump called the indictment “fake” and accused Smith of trying to “interfere” with the 2024 election. “Why didn’t they do this 2.5 years ago?” he wrote. “Why did they wait so long? Because they wanted to put it right in the middle of my campaign.”

The government has summoned Trump to appear in D.C. federal court on Aug. 3, according to the Justice Department. 

“The attack on our nation’s Capitol on January 6, 2021 was an unprecedented assault on the seat of American democracy,” Smith said Tuesday. “Our investigation of other individuals continues. In this case, my office will seek a speedy trial so that our evidence can be tested in court and judged by a jury of citizens.”

The indictment accuses Trump of repeatedly lying about election malfeasance even though he knew those claims were false. It alleges that multiple administration officials told him there was no widespread fraud that would have changed the election outcome, including Vice President Mike Pence, senior DOJ officials, Director of National Intelligence John Ratcliffe, and senior White House attorneys. 

But that didn’t stop Trump from pressing forward with his attempts to hold onto power. A core component of the charges stems from Trump’s attempts to submit fraudulent slates of electors in key swing states that went for Joe Biden, such as Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin, according to the indictment. 

It also details private phone calls in the days before the Jan. 6 attack between Trump and Pence, who took “contemporaneous notes” of the conversations, according to the indictment. In one of them, Trump allegedly told the former Vice President he was “too honest” after Pence said he didn’t have the authority to unilaterally reject the election results. The indictment says Trump attorney John Eastman also pressured Pence to subvert the Electoral College certification. After a senior aide warned that such a maneuver would galvanize riots in the streets, Eastman allegedly argued that “there had previously been points in the nation’s history where violence was necessary to protect the republic.”

Pence responded to the indictment on Tuesday with a statement, saying in part: “On January 6th, Former President Trump demanded that I choose between him and the Constitution. I chose the Constitution and I always will.”

By the time Trump’s efforts to override the election had reached a crescendo on Jan. 6, the indictment alleges, Trump exploited the violence refusing to approve a message directing rioters to leave the building. Yet even after the crowd dispersed hours later, Trump would not relinquish his claims that the election was rigged. “The White House counsel called the defendant to ask him to withdraw any objections and allow the certification,” the indictment says. “The defendant refused.”

The indictment is the latest in a long string of Trump’s legal woes. He’s also facing charges from a separate special counsel investigation by Smith alleging he hoarded national-security secrets and obstructed the government’s efforts to retrieve them. In New York, Manhattan District Attorney Alvin Bragg indicted Trump in April over allegations that he falsified business records to conceal hush-money payments to a porn star.

Trump may soon face yet another criminal prosecution in Georgia, where Fulton County District Attorney Fani Willis has empaneled a grand jury to probe the former President’s alleged attempts to overturn the 2020 election result in the state.

Ordinarily, a leading presidential candidate facing criminal indictments in multiple venues would be a death blow to their White House ambitions. But within the contours of the Republican primary, Trump has turned his legal vulnerability into a political advantage. In the immediate aftermath of his first two indictments, Trump raised millions of dollars and his polling soared. Since then, he’s remained the clear front-runner for the 2024 GOP nomination, leading his closest rival, Florida Gov. Ron DeSantis, by more than 30 points in most national polls. 

“The lawlessness of these persecutions of President Trump and his supporters is reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes,” the Trump campaign said in a statement on Tuesday. “President Trump has always followed the law and the Constitution, with advice from highly accomplished attorneys.”

In a previous Truth Social post before the latest indictment was announced, Trump argued: “I have the right to protest an Election that I am fully convinced was Rigged and Stolen.” 

Jessica Roth, a former federal prosecutor in the Southern District of New York and now a professor at Cardozo School of Law, argues that won’t amount to a persuasive legal defense. “What you can’t do even if you think that you won an election is resort to unlawful means, no matter how convinced you are that you somehow won,” she says. “It’s not a winning legal argument.” It will “significantly” help prosecutors, Roth adds, if they can prove Trump knew he lost the election, but pressed ahead with false claims anyway.

At the heart of Trump’s response to the charges has been to gin up a sense of collective grievance among the MAGA faithful. “They’re not coming after me, they’re coming after you,” he often tells his supporters at rallies. He has also claimed, without evidence, that the prosecutions are a politically-motivated witch-hunt designed to kneecap the man blocking PresidentBiden’s path to a second term. 

Yet out of all the indictments thus far, Smith’s latest may be the one Trump’s critics have been pining for the most. While Democrats and Never Trump Republicans have relished seeing Trump face any form of legal retribution after 50 years of dodging investigations, they have especially wanted him to face accountability for his role in the Jan. 6 attack on the U.S. Capitol and attempts to prevent the peaceful transfer of power. 

Trump’s multi-faceted efforts to overturn the 2020 election were the subject of the historic Jan. 6 Committee, which held primetime hearings last summer and fall that garnered more than 20 million viewers. The nine-member bipartisan panel sought to show in painstaking detail that Trump was the main culprit behind the violent attempted insurrection. “The central cause of Jan. 6 was one man, former President Donald Trump,” the committee wrote in its final report. “None of the events of Jan. 6 would have happened without him.” 

The panel’s 18-month inquiry and 10 public hearings culminated in a dramatic moment when its members voted unanimously last December to refer criminal charges against Trump to the Justice Department. There was enough, the committee said, for federal prosecutors to pursue at least four charges: obstructing an official proceeding, conspiracy to defraud the government, making false statements, and assisting an insurrection. While the move had no legal weight, it was the first time a congressional committee made such a declaration against a former President. 

The referral came as the Justice Department had been pursuing its own investigation into Jan. 6, which by then was under the purview of Smith, who Attorney General Merrick Garland appointed as special counsel after Trump announced his presidential bid in November. 

As a candidate, Trump has consistently cast the many criminal probes against him as the instrument of systemic forces conspiring to bring him down. It has led some to speculate that Trump officially launched his candidacy early—a week after the midterms—to complicate matters for prosecutors who have a longstanding policy of trying to avoid even the appearance of influencing an election. Trump critics also suspect that he wants to delay the trials past the election. That way, if he wins, he could attempt to pardon himself in the federal cases or have his attorney general simply squash the matter entirely. 

But U.S. District Judge Aileen Cannon, who is overseeing the classified documents case, has pushed that trial to May 20, 2024. And in New York, the “hush money” case is scheduled to start on March 25, 2024—both in the heat of the primaries. 

It’s unclear whether Trump could stand trial for the Jan. 6-related charges before voters head to the polls, but some former federal prosecutors thinkTrump’s delay efforts are likely to work. Years-long delays are common in most white-collar criminal cases, and it will be even harder to expedite the high-stakes and unprecedented prosecutions of a former President who is also the leading candidate for the 2024 Republican nomination. 

Even if Trump is convicted by the special counsel, the charges against him won’t disqualify him from the presidency, according to legal experts. Under the Constitution, all natural-born citizens who are at least 35 years old and have been a resident of the U.S. for 14 years can run for president. There is no legal impediment to Trump continuing his presidential campaign while facing criminal charges—even if he were jailed.

For Smith and his prosecutors, Tuesday’s indictment is the beginning of a lengthy legal process. “This is going to be a challenging case,” Roth says. “Even more challenging to present and win than the case in Florida involving the documents. There will be a great deal of evidence and a very complicated story that will need to be told to explain the crimes and to explain the former President’s conduct. It’s much more sprawling than the charges that were brought in Florida that are, in a sense, narrow in their scope.”