The Target Letter

Ex-president Donald Trump and Special Counsel Jack Smith. Photos by Brandon Bell/Getty Images and Jerry Lampen/AFP via Getty Images

On Sunday night, ex-president Trump received what many have long been anticipating: a letter from the Justice Department notifying him that he is the target of a criminal investigation and inviting him to appear before the grand jury to plead his case. On Tuesday, Trump confirmed that he had received the letter in a long rant on Truth Social, and news outlets quickly confirmed with their own sources that this was indeed the case.

Things are starting to click into place, but much remains unknown, at least until the indictment is unsealed and any facts that the Special Counsel wishes to include within it become public. That indictment could come down any day; while Trump had been given four days from Sunday to appear before the grand jury, it may be that he has already declined and the case is being presented to the panel now. 

In any event, this is the endgame before an indictment, so it may be useful to begin to understand the likely path of a federal criminal court case against Trump arising out of his efforts to overturn the 2020 election.

Let’s jump right in.

Three crimes likely to be charged

ABC News confirmed initial reporting by Rolling Stone that the target letter lists three crimes for which Trump is the target of a federal investigation:

1. Conspiracy to commit offense or to defraud the United States;

2. Deprivation of rights under color of law; and

3. Tampering with a witness, victim or an informant.

Note, however, that number 3 is described generally in the title as witness tampering, but it also includes way down in the statute the crime of obstruction of an official proceeding. As I’ll explain in greater detail below, obstruction of Congress is what he is likely to be charged with under the witness tampering statute, so don’t take the law’s title at face value.

Conspicuously missing from this list are the two more serious charges of Inciting Insurrection and Seditious Conspiracy. So let’s talk about those first.

What about the more serious charges?

I admit, when I saw that these two crimes were missing from the target list, I felt a bit let down, but not really surprised. In fact, as my write-ups have noted through these many months, the very serious charges of attempted obstruction of the electoral count and defrauding the United States were always the most likely to land, with crimes like insurrection and sedition far less likely. (Still, it was nice to hope for.)

So why no incitement or sedition charges? Smith has weighed the pros and cons of charging beyond the three crimes listed. It is his responsibility to build an airtight case, because as they say, if you come for the king, you’d best not miss. Smith must believe he has a much stronger case on the listed charges than he would on incitement and sedition. And good prosecutors only charge what they know they can prove beyond a reasonable doubt.

There has always been a looming First Amendment problem with charging Trump with inciting insurrection and seditious conspiracy. On inciting insurrection, he can point to the fact he told protestors to go peacefully. On seditious conspiracy, nothing he ever did or said, so Trump claims, called directly for the use of force or the overthrow of the government. In fact, according to Trump, he wanted to save the country from being stolen by a fraudulent election.

These aren’t altogether convincing arguments, and there’s a great deal of contrary evidence, but they could raise some doubt with the jury. More importantly, litigating the scope of Trump’s free speech rights would eat deeply into the calendar, making a trial before the election less likely. Smith understands his greatest enemy is time, because Trump’s team will seek to delay the proceedings with endless motions and appeals, hoping to get rid of the case entirely by winning the election next year.

That’s why, looking more closely at the crimes listed in the target letter, they make a good deal of sense. Let’s look now at why that is.

Conspiracy to Commit Offense or to Defraud the United States

This statute is found at 18 U.S. Code § 371, and the relevant portion is very simply stated:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

So what exactly would constitute committing an offense against the U.S. or defrauding the U.S. here? 

One thing that immediately jumps to mind is the fake elector scheme.

As you may recall, in order for the infamous Eastman coup plan to work, then-vice president Mike Pence would have to have some reason to declare that the electoral counts of the swing states were in doubt, and therefore he was setting them aside. That bogus reason, it turns out, came in the form of the fraudulent electoral certifications by fake swing-state electors in seven battleground states, which the coup plotters attempted to deliver to Mike Pence.

Pence declined to go along with the plan, so it failed. But that doesn’t matter for purposes of this statute. The illegal plan was to use false documentation to perpetrate a fraud upon the country and give Pence some arguable right to act contrary to his ceremonial electoral counting role and declare Trump the winner, or otherwise send the matter “back to the states” where sympathetic GOP legislators could work further mischief.

We know that Smith has delved deeply into the fake elector scheme, subpoenaing documents from the battleground states and calling in witnesses from various jurisdictions who participated in it. And just yesterday, the Michigan State Attorney General filed charges of forgery, fraud and other crimes against all 16 of the fake electors who were in on the scheme in that state.

The fake elector conspiracy has the advantage of being committed on paper and of being well-documented in email communications between the Trump campaign and the fake electors. Trump himself participated in meetings to help organize and launch the effort, according to witness testimony and contemporaneous text messages. There also isn’t some baseline defense based on “free speech” that can help him wiggle out of it either. No amount of free speech allows you to commit fraud.

I should note that the language of the statute is broad enough to encompass far more than the fake elector scheme. An offense against the U.S. could include, for example, the Big Lie and the Big Grift that followed. We’ll have to wait and see how narrowly or expansively Smith has elected to charge on this crime.

Deprivation of Rights under Color of Law

This charge came as a surprise to almost everyone. But on closer look, I am a bit intrigued. 

The law is laid out at 18 U.S. Code § 242. This is a Civil War-era statute intended to get at the fact that officials were abusing their authority to deprive Blacks of their constitutional rights. But it rarely came into use until 100 years later during the Civil Rights Era, and it showing up here in this case is noteworthy.

This is what the statute says, in relevant part to this case:

Whoever, under color of any law…willfully subjects any person…to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States…shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section…shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Two things to note here. The inclusion of this crime means prosecutors believe they can show Trump acted “willfully” to deprive at least someone of their lawful rights, and that he did so under “color of law.” 

Right now we don’t know the identity of the alleged victims of such deprivation of rights—perhaps election workers in Georgia that Trump harassed online, perhaps Mike Pence whose life he endangered through his tweets, perhaps the police officers who were on the front lines and badly injured or killed—but that presumably will come out soon. More fascinating to me is the use of “color of law” in this case—which starts to make really good sense once you think about it.

Acts performed under “color of law” include not only those committed within someone’s actual authority, but also those done beyond the scope of the official’s authority, provided the official was purporting to or pretending to act in the performance of their official duties. It’s most commonly applied to cops who abuse their power, but it could apply to presidents, too.

“Color of law” is a good way of describing exactly how Trump was acting. He had a habit of claiming he was acting with what amounts to presidential impunity. But many of the acts he undertook were actually outside the scope of his presidential power, even though he claimed they were not. This statute says, it doesn’t matter whether you were inside or outside of bounds. You were acting under “color of law,” and in so doing you deprived someone else of their lawful rights.

This presumably means Smith won’t have to actually litigate whether Trump’s presidential powers included or didn’t include the things he is accused of. All that matters is that Trump acted as if he had the lawful right to do what he did. And if that resulted in willful deprivation of another person’s rights, he would be guilty of this crime.

Tampering with a witness, victim or informant (a.k.a. obstruction of Congress)

The law prohibits witness tampering and other obstruction at 18 U.S. Code § 1512. But the part I want to zero in on is at Section 1512(c)(2):

(c) Whoever corruptly—

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

This is the whole enchilada on the soft coup, namely, everything that John Eastman and other Trump White House plotters were trying to do. It could also tie Trump directly to the violent attack on the Capitol, whether the evidence shows he was aware of the attack in advance or whether he simply stood by and did nothing to quell the riot. 

It also carries a very hefty penalty of up to 20 years prison time. Sentencing guidelines would pull that down a lot, but it’s still significant.

Notably, the Justice Department has already successfully charged many January 6 foot soldier defendants with the crime of obstruction of Congress. So within the D.C. Circuit there is now greater familiarity with the law’s contours. The key here will be the proving of Trump’s corrupt intent, which will come through by way of third party witness testimony, assuming Trump doesn’t take the stand.

We already have a great deal of evidence that bolsters the claim Trump acted with corrupt intent in attempting to stop the electoral count, either through the Eastman plot or through the violent mob.

But only Jack Smith and his team know the true extent of the evidence, much of which we have never heard. 

That’s because witnesses called before the January 6 Committee often refused to show, or they showed up and took the Fifth. Smith could get around this wall of silence by issuing court rather than congressional subpoenas, then offering immunity on anything said before the grand jury to compel any reluctant witness testimony. No Fifth possible if he did that. 

So my bet is there is a lot more that will be coming out soon, and that it’s pretty damning.

Why hasn’t anyone else gotten a target letter?

There’s another mystery left to unpack. So far as we know, Trump is the only one of the conspirators around January 6 to receive a target letter from the Justice Department. Giuliani and Eastman have not, according to their attorneys. Neither have any other key Trump White House lawyers or staff, nor any Congressmembers who may have been in on the scheme.

We shouldn’t read too much into this just yet. Those letters may still be forthcoming, or Smith may want to conduct a trial of just the former president without dozens of other defendants in order to keep things clean and streamlined. Juggling the schedules of so many lawyers on the defense side could prove a logistical nightmare. And Smith can always come after the co-conspirators later. Some may agree, or have already agreed, to cooperate. We will have to see.

What we do know is that the case is wrapping up and Trump almost certainly will be indicted in the very near future on charges that are extremely serious. Smith will have completed this work in just under seven months since his appointment, which is an incredible accomplishment.

This coming indictment will also completely eclipse the existing indictments in New York and Florida because it will focus on Trump’s most serious crimes against the nation—the attempted destruction of our democracy itself. Never in our nation’s history has such a crime been attempted by a sitting president, and at long last, Trump will have to face a jury and be held to answer for his actions.