Thread by @NormEisen

Yesterday was a red (target) letter day for Trump

There’s been a lot of reporting on the three specific charges the letter contains

I’ll unpack all three in this THREAD based on our @just_security model prosecution memo 👇1/x

All of the reporting is in the ballpark but I think this Bloomberg @business article likely gets it just right–and tracks with our model pros memo.
2/xbloomberg.com/news/articles/…

Bloomberg is reporting the letter includes 2 criminal statutes which we analyzed, plus a third that fits nicely
18 USC 371–conspiracy to defraud the US

18 USC 1512–obstructing an official proceeding

& 18 USC 241 or 242–conspiracy to deprive civil rights
3/x

The “conspiracy to defraud the US” potential charge likely refers to Trump’s fake electors plot and similar schemes

This tracks w/ what we call Act One in our memo👇
4/x

“Conspiracy to defraud the US” is a TWO-pronged offense–as the title makes clear

You can conspire to defraud the U.S. by some fraudulent scheme, OR you can conspire to commit another offense–we argued Trump did both
5/x

Conspiring to send fake electors to Congress likely violates the “offense” prong

We just saw charges for Michigan fake electors–& Trump’s promotion of the schemes would be enough to charge him federally
6/x
nytimes.com/2023/07/18/opi…

2nd and still on Section 371 the “Defraud Prong” makes it illegal to impede a lawful US govt function

Substituting fake electors for real ones would have stopped the counting of lawful ballots
7/x

We advocated for an Insurrection Act charge–but those charges haven’t been brought since Civil War

As we noted, Smith might side step that and ultimately take a safer route
8/x
justsecurity.org/87236/trump-on…

Smith’s path might be charging Trump under 18 USC 241 or 242 w/ “deprivation of rights”–as @RollingStone & others also suggest

This civil rights statute was passed during Reconstruction to prevent using law to limit constitutional rights–like voting
9/x
rollingstone.com/politics/polit…

That could also apply to our Act Three—violence against Pence members of Congress to prevent them to do their official duties

We looked at that thru the lens of the Insurrection Act, but it fits well here as a § 241 or 242 offense
10/x

But the § 242 theories don’t stop there

There are more things Smith could be driving at here—if the reporting is accurate

H/t to my friend @rgoodlaw for brainstorming w/ me
11/x

Trump & others may have also conspired to deprive VOTERS of their rights

The former president and co-conspirators were trying to block the rightful winner of the election—that’s an assault on everyone who voted
12/x

Or § 242 charge could be based on the harm done to the REAL electors by attempting to block their duty to vote for the winner
13/x

Even if Smith does not charge an Insurrection Act violation, which we wrote was a bit of a long shot, § 241 or § 242 conspiracy would be the equivalent

What is an insurrection if not a conspiracy against rights?
14/x

Thus this kind of a charge based on targeting Pence and members of Congress would be consistent with efforts to disqualify Trump under the 14th Amendment § 3, which I wrote about
15/x
pogo.org/report/2022/11…

Lastly, some are reporting that it’s NOT § 1512, but § 1513 for witness tampering

We covered this possibility in our memo as well, although we looked at it through the lenses of another closely related witness tampering statute, § 1519
16/x

But here, if these charges are being brought against Trump under Sec. 1513, it’s most likely under subsection (c): tampering w witnesses in a criminal case

I mean who would be surprised if he messed with some grand jury witnesses?
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