The letter from Smith, according to media reports, sketched out some potential charges the former president could face – referencing a Reconstruction-era civil rights statute as well as laws that may indicate that Trump could face an obstruction similar to what has been used to convict some Capitol rioters. But without more detail, it’s hard to know exactly what shape the charges will take or what Trump 2020 election-related conduct they are aimed at.
Trump’s attorneys, including Todd Blanche, received the target letter from Smith’s team Sunday informing them that their client could face charges in the investigation into efforts to overturn the 2020 election, two sources familiar with what happened told CNN.
The letter, according to reports, cites three statutes that Trump could be charged with: pertaining to deprivation of rights; conspiracy to commit an offense against or defraud the United States; and tampering with a witness.
Trump is already facing criminal charges from Smith in the special counsel’s probe into the former president’s unlawful retention of classified materials after he left the White House, and Trump was charged earlier this year with state crimes in New York stemming from a hush money payment scheme he allegedly arranged around the 2016 election.
“There are other serious criminal cases that have been brought against him or that are anticipated. But none are more important or more dangerous to the former president than this one,” said CNN legal analyst Norm Eisen.
“Trump is at profound risk here,” he said, noting some of the penalties for the violations detailed in the target letter.
Trump has denied any wrongdoing and claims the investigation is politically motivated.
Here’s what to know about the potential charges.
A civil rights statute that could cover a host of Trump post-election conduct
Trump appears to be potentially facing charges pertaining to the deprivation of rights, with prosecutors potentially leaning on Reconstruction-era civil rights laws intended to prevent officials or others from interfering with the constitutional or legal rights of Americans.
“It could be the deprivation of all US voters’ rights,” former federal prosecutor Shan Wu told CNN’s Manu Raju on “Inside Politics.” “Or it could be as narrow as his interference with (then-Vice President Mike) Pence’s duties or these fake electors – the actual electors, their rights were being interfered with.”
The deprivation of rights charges are typically used in civil rights cases, including in the prosecution of election-related offenses. One statute in particular is aimed at offenses perpetrated by people under “color of any law, statute, ordinance, regulation, or custom.” It includes heightened penalties – including a prison sentence up to 10 years – if the conduct results in “bodily injury.” An ABC News report on the target letter suggest that deprivation of rights under “color of the law” is what was referenced in the target letter.
Another deprivation of rights statute – and one cited in The New York Times’ reporting on Smith’s warning to Trump – addresses conspiracies “to injure, oppress, threaten, or intimidate any person” in the exercise of their rights.
The laws have been used to prosecute cases involving ballot-stuffing or other efforts to meddle with the tabulation of votes.
“Here, what Trump was doing was allegedly involved in a scheme to interfere with the recognition of the votes of the 81 million Americans who chose Joe Biden and instead, to preserve himself – that would be an interference with voting rights of all Americans,” Eisen said. “Their votes would be nullified.”
It is still very much unclear what Trump conduct from the post-election period could trigger this kind of charge. The fake electors scheme is a potential source of liability, according to Justin Levitt, a Loyola Law School professor, as could be the calls to officials in Georgia or Arizona, as well as the scheme centered around the January 6, 2021, certification ceremony itself.
“Some of these conspiracy against rights statutes, or deprivation under color of law statutes, might have to do with stuff that didn’t take place on the 6th. And some of it might,” said Levitt, who had a top civil rights role in the Obama Justice Department and who also formerly served in the Biden White House.
Investigators have also been scrutinizing the threats election officials received amid Trump’s election subversion campaign.
The criminal conspiracy deprivation of rights statute was used to secure a conviction against Douglass Mackey, whom prosecutors accused of conspiring with influential Twitter users during the 2016 election “to deprive individuals of their constitutional right to vote.” Mackey is set to be sentenced later this year.
The statutes are considered the criminal counterparts to the 1871 Ku Klux Klan Act that has been used in civil January 6 lawsuits against Trump and others.
Will prosecutors use a witness tampering statute that has been used to prosecute January 6 rioters?
Among the potential charges Trump has been warned about is one pertaining to witness tampering, according to the Wall Street Journal and other outlets. This could be a reference to witness tampering as it’s known in the traditional sense, or it could be that the special counsel is utilizing a provision in a federal witness tampering statute – a provision that criminalizes the obstruction of “an official proceeding” – that has been used to prosecute rioters who breached the Capitol on January 6.
The latter charge has been a staple of the Justice Department’s riot prosecution strategy. In those cases, prosecutors have had to show that the rioters breached the Capitol with the intent of disrupting Congress’ validation of President Joe Biden’s 2020 win.
Its appropriateness for the Capitol attack cases has been litigated, including at the appellate level.
In addition to using it to prosecute rioters themselves, the Justice Department has also successfully wielded it against Enrique Tarrio, a Proud Boys leader who was nowhere near the Capitol building on January 6, securing a conviction under the statute with evidence that he was involved in the planning ahead of the attack.
A conspiracy charge that a federal judge has already connected to Trump
The final charge that has been floated in the reports of the target letter is a conspiracy charge, which could cover a whole host of conduct. The general conspiracy charge is “Conspiracy to commit an offense against or defraud the United States,” which essentially covers plotting by two or more people to violate a US law.
Trump’s alleged involvement in a criminal conspiracy has been invoked in the litigation around the House select committee that investigated January 6’s pursuit of Trump lawyer John Eastman’s emails.
A federal judge ruled against Eastman’s assertions of privilege over certain emails, with the judge, US District Judge David O. Carter, finding that Trump and Eastman “more likely than not” engaged in a conspiracy to unlawfully obstruct Congress’ certification vote. That ruling pointed both to the obstruction of an official proceeding statute and the general conspiracy statute. In a follow up ruling, Carter cited the broader conspiracy statute to okay the release of certain Eastman emails suggesting that Trump knew that some of the claims of voter fraud he was promoting publicly were not accurate.
Smith could be eying the conspiracy charge for an entirely different use. But the bigger picture of the the charges reportedly cited in the target letter is that Smith appears to be taking a “broad view” of a potential criminal conspiracy, said Elie Honig, a former federal prosecutor and a CNN legal analyst.
“It’s clear that his focus is primarily on the days and weeks leading up to January 6 and the scheme to try to steal the election through pressure and through fraud, even more than it’s on the actual January 6 Capitol attack, if it even focuses on the actual physical assault on the Capitol as anything other than a final chapter,” Honig said. “So in other words, it seems that these charges are going to be substantially more about the plotting to steal the election than the actual physical assault on the Capitol.”
CNN’s Hanna Rabinowitz and Holmes Lybrand contributed to this report.