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5 questions around Trump’s looming indictment


(The Hill) — It looks all but inevitable that former President Donald Trump will soon be criminally charged in relation to the events that culminated in the Capitol riot of Jan. 6, 2021.

Trump declined to meet with the grand jury investigating the matter late last week. An invitation for a “target” such as Trump to give grand jury testimony is often a precursor to the person being charged.

The former president has himself predicted his imminent arrest over the riot, in which almost 150 law enforcement officers were injured.

Trump said in a Truth Social post last Tuesday morning that the combination of the target notification and the offer to speak to the grand jury “almost always means an Arrest and Indictment.”

Here are the biggest questions if that indictment does come in the next few days.

What will the charges be?

The biggest question of all — and the one that will be answered the moment an indictment is issued.

Among the most intriguing possibilities is that Trump could be charged under a law that was enacted in part to try to curb the activities of the Ku Klux Klan during the Reconstruction era.

The offense is “conspiracy against rights” — Section 241 of Title 18 of the U.S. Code.

Under the statute, it is a crime for two or more people to “injure, oppress, threaten or intimidate” anyone “with intent to prevent or hinder his free exercise or enjoyment of any right or privilege” the person enjoys under the U.S. Constitution.

The theory is that alleged election meddling by Trump and his allies could be held to have oppressed those voters who cast ballots with every expectation that the legitimate result of the election would be upheld.

But even the wording of the law shows its anachronistic nature. It in part sanctions those who would “go in disguise on the highway” to oppress others, for example.

If prosecutors do bring charges but demur on conspiracy against rights, a more conventional template is offered by the four alleged offenses for which the House Select Committee that investigated Jan. 6 referred Trump to the Justice Department.

The committee contended there was evidence of inciting or aiding an insurrection, obstruction of an official proceeding, conspiracy to defraud the United States and conspiracy to make a false statement.

Some legal experts also think it is possible Trump could be charged with witness tampering.

Two points bear emphasis. First, it is still possible Trump will not be charged at all. Second, he himself expects that he will be.

If Trump is charged, is it a speaking’ indictment?

Trump has already been indicted in two separate cases: in April, by Manhattan District Attorney Alvin Bragg (D) on charges of falsifying business records, and in June, by special counsel Jack Smith in relation to the sensitive documents found at Mar-a-Lago.

Smith is also leading the probe into Jan. 6. Trump has attacked him repeatedly in online posts and campaign speeches.

The indictments in Manhattan and relating to Mar-a-Lago were stylistically very different.

Bragg’s indictment was a dry recitation of exactly what he alleged the offenses were, with little other context beyond a separate “Statement of Facts,” most of which were already known.

The Mar-a-Lago document was what is known in legal parlance as a “speaking indictment,” telling a vivid story about Trump’s alleged recklessness in storing documents from his time in the presidency in a ballroom and, later, a bathroom at Mar-a-Lago.

It also included details that, if proven, look like blatant obstruction of justice. Trump allegedly plotted to keep documents out of the grasp of authorities, even though he had been subpoenaed to produce them.

If a Jan. 6 indictment is issued, it can be expected to follow the Mar-a-Lago approach.

One key point will be whether Smith and his team have unearthed any potent details that are not yet public knowledge.

How does the timing of a trial fit in with the 2024 campaign?

The indictments of Trump are unprecedented for many reasons — not least that they are landing during a campaign by the former president to regain his previous office.

Friday brought important news on the Mar-a-Lago case: Judge Aileen Cannon, a Trump appointee, named May 20 next year as the start date for the trial.

It seems reasonable to assume that any trial on a Jan. 6 case would be later.

The scenario that unfolds from there is politically breathtaking. 

Trump could have the GOP nomination in effect wrapped up at the same time he is facing multiple trials for serious criminal offenses.

Nothing remotely like that has ever been seen in American politics.

It’s also worth noting that a hypothetical trial and conviction would not be the end of the matter. Trump, like anyone, could appeal. What if he won the presidency back in the interim? He could then instruct the Department of Justice not to contest the appeal. 

Notably, a president cannot take the same action in state cases as in federal ones. 

That’s why some people believe the single greatest threat to Trump is still the probe into election interference in Georgia, spearheaded by Fulton County District Attorney Fani Willis (D).

Willis has indicated she will likely make a charging decision by mid-August.

Will the Democrats gloat if Trump is indicted?

Privately, perhaps. Publicly, almost certainly not.

Democrats, and the White House in particular, are leery of doing or saying anything that would fuel GOP accusations regarding the politicization of the justice system.

The White House has reacted to the other Trump indictments mostly with rather formulaic statements about letting the process play out. Democrats in Congress have typically followed the same path.

There’s no reason to suppose that will change now.

What will the impact be on the 2024 election?

There are two very different answers here, one relating to the Republican primary, the other to a possible general election.

Trump remains the strong favorite to win the GOP primary.

There is no compelling evidence at all to suggest that his previous indictments have hurt him with Republican voters. In fact, he may have benefitted from a rallying-around effect, especially after the Bragg indictment.

Trump currently leads his closest challenger, Florida Gov. Ron DeSantis (R), by about 30 points in national polling averages.

But it’s a very different story when it comes to an effort to win a general election.

Trump lost the popular vote in 2020 by more than seven million votes. He was unpopular for much of his presidency and remains so. 

In the weighted polling average maintained by data site FiveThirtyEight, Trump’s unfavorable numbers have ticked up recently. As of Sunday evening, he was viewed unfavorably by roughly 58 percent of Americans and favorably by just 39 percent.

It’s tough to see how a third indictment, relating to a dark day in American history, could possibly help Trump win over even a sliver of the voters he would need to return to the Oval Office come Inauguration Day 2025.

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