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July 13, 2023

This model prosecution memorandum (or “pros memo”) assesses federal charges Special Counsel Jack Smith may bring against former President Donald Trump for alleged criminal interference in the 2020 election. The authors have decades of experience as federal prosecutors, criminal defense lawyers, and other legal expertise. We conclude that the evidence likely now meets Department of Justice standards to commence a prosecution. We base that conclusion upon a stream of recent disclosures in court filings and in the press that have come on top of the findings of the House Select Committee to Investigate the January 6th Attack on the United States Capitol (the “Select Committee”).

Our memo follows a common DOJ practice. Prior to indicting a case, federal prosecutors prepare a pros memo that lays out admissible evidence, possible charges, and legal issues. This document provides a basis for prosecutors handling the case and their supervisors to assess whether the case meets the standard set forth in the Principles of Federal Prosecution, which permit charges only when there is “evidence sufficient to obtain and sustain a conviction.”

Here, we conclude there likely is sufficient evidence to obtain and sustain a conviction of Trump for his three-step plan to overturn the election:

  1. Trump knew he lost the election but did not want to give up power, so he worked with his lawyers and others on a wide variety of schemes to change the outcome. Those schemes included creating fraudulent electoral certificates that were submitted to Congress, implicating statutes such as 18 U.S.C. § 371, which prohibits conspiracies to defraud the United States in the administration of elections.
  2. When all the other schemes failed, Trump and his lawyers ultimately concentrated on using the false electoral slates to obstruct the constitutionally mandated congressional certification of the election on January 6, implicating statutes such as 18 U.S.C. § 1512, which prohibits obstruction of an official proceeding. Their primary objective was to have Vice President Mike Pence in his presiding role on that day either block Congress from recognizing Joe Biden’s win at all or at least to delay the electoral count.
  3. When Pence refused, Trump went to his last resort: triggering an insurrection in the hope that it would throw Congress off course, delaying the transfer of power for the first time in American history. This implicated statutes such as 18 U.S.C. § 2383, which prohibits inciting an insurrection and giving aid or comfort to insurrectionists. (Section 2383 is rarely charged, and as we discuss below, this is a charge DOJ will use only with extreme caution. We believe there is sufficient evidence to pursue it—as did the Select Committee in making a criminal referral of Trump under that statute—but prosecutors may make different choices. Much will depend on the evidence the Special Counsel develops.)

Our own conclusions based upon the publicly available information are bolstered by the analysis of many other authorities:

  • A federal judge has already found by a preponderance of the evidence that Trump and a co-conspirator (John Eastman) likely violated 18 U.S.C. § 371 and 18 U.S.C. § 1512.
  • The Select Committee has made criminal referrals of Trump and his co-conspirators to DOJ under those and other statutes based upon voluminous and persuasive evidence summarized and cited in their report.
  • Subsequent to that report’s issuance, the Committee released a large body of additional evidence containing information that supports prosecution—some of which is publicly analyzed for the first time in this model pros memo.
  • Evidentiary hurdles faced by the Select Committee have been overcome by Special Counsel Smith through the use of his more robust subpoena power and a series of court victories. He has now taken testimony from two of the most important witnesses in the case, former Vice President Pence[1] and Trump’s former Chief of Staff Mark Meadows,[2] and recently interviewed a third, Trump’s personal lawyer Rudy Giuliani.[3] Smith has also taken testimony from an array of other key witnesses including: former White House Counsel Pat Cipollone,[4] his former deputy Pat Philbin,[5] former White House Deputy Chief of Staff Dan Scavino,[6] former National Security Advisor Robert O’Brien,[7] former Senior Advisor Stephen Miller,[8] former Director of National Intelligence John Ratcliffe,[9] former Acting Deputy Homeland Security Secretary Ken Cuccinelli,[10] former aide Nick Luna,[11] former White House Presidential Personnel Office Director John McEntee,[12] and Georgia Secretary of State Brad Raffensperger.[13] While we do not have the grand jury transcripts, we are able to assess the likely testimony based on publicly available information such as that contained in Pence’s book, Meadows’s contemporaneous texts, and prior hearsay evidence that may itself not be admissible at trial. The testimony in DOJ’s possession is likely highly incriminating of Trump.
  • A bipartisan expert consensus has emerged that charges here are merited and likely. Among the first and most persuasive to make the case was former U.S. Attorney Barbara McQuade, who published a model prosecution memo over a year ago on which we build.[14] Most recently, the consensus has been joined by Trump’s own former attorney general and one-time defender, Bill Barr,[15] and eminent conservative jurist Judge Michael Luttig.[16]
  • A series of rare convictions of some of the leading insurrectionists under the charge of seditious conspiracy have now laid the groundwork for closely related insurrection charges against Trump.

DOJ likely is now, or shortly will be, internally circulating a pros memo of its own assessing possible 2020 election interference charges against Trump and possible co-conspirators. That DOJ memo will, however, be highly confidential, in part because it will contain information derived through the grand jury and attorney work product. Since it may never be publicly available, we offer this analysis for use by the public, the press, policymakers, and other interested individuals. Our analysis adopts the format of a model pros memo on the Trump classified documents investigation, which some of the same authors released and which correctly anticipated charges in that case.[17] Our analysis also builds upon an earlier report[18] that some of the authors released before the commencement of the Select Committee hearings on possible 2020 election interference crimes. We also note that because this is a public-facing document written for both legal scholars and a broader audience (rather than an internal document directed at lawyers already steeped in the facts and the law), this memo includes more facts and more legal analysis than a typical pros memo would.

The Select Committee’s extraordinary work and final report are the foundation of our memo, but our analysis is distinct. Ours is the first in-depth application of the relevant criminal law to the facts, building on the more concise criminal referrals the committee offered in its report. We endeavor to look at that report with skeptical eyes as prosecutors do, to narrow the case to what can confidently be proven to a jury, and for the first time anywhere to consider at length, and of course in good faith, Trump’s defenses and how they will fare. Moreover, the public record has grown a great deal since the Select Committee report’s publication in December 2022, and we update it with the information released after the report. We consider the depositions and documents that the Committee itself released after the report came out, as well as a substantial amount of other reported new evidence.

Throughout this memo, we urge a focused approach to charging and trying the case that can be done using our three-part structure or another simplifying approach that would allow the case to come to trial within a year. (We diverge from a typical pros memo in extensively analyzing approaches and advocating for this relatively simple one.)

The classified documents indictment offers insight into Smith’s possible thinking here. Those charges include only one co-conspirator, a measured approach suggesting that the list of defendants in this case likewise might be a short one. It may include some or all of those mentioned by the Select Committee in their referrals for prosecution: Trump and associated attorneys John Eastman and Kenneth Chesebro. The Committee referred Mark Meadows, and he may be included as well, though some reports suggest he may be cooperating.[19] If true, that might make his inclusion in an indictment unlikely. Rudy Giuliani, who was also referred, has spoken to prosecutors and may also end up cooperating,[20] and, if so, his inclusion in an indictment could be similarly unlikely. Given the stature of both Meadows and Giuliani, and their apparent level of culpability in relation to the events described in this pros memo, however, we also think it unlikely that the special counsel would grant them any kind of immunity without concomitantly requiring a plea agreement. It is possible one or more such agreements have already been made, although Meadows’s attorney has flatly denied it with respect to his client.

By urging a disciplined approach that focuses on the false electoral slates and a short list of possible defendants, we are not, of course, suggesting that Smith should refrain from investigating or prosecuting other schemes or other defendants in the fullness of time if the evidence merits. Indeed, news reports indicate that prosecutors recently spoke to Georgia Secretary of State Brad Raffensperger, including about one aspect of the larger landscape—the effort to influence him to “find 11,780 votes.” As one of the authors has argued elsewhere,[21] that scheme alone and its related developments might give rise to federal offenses quite apart from the false electors, and Smith could well charge them.

But if he already has perfectly good charges relating to the essence of the three acts described, and can obtain and sustain a conviction, how much more broadly should he charge—or should he simply present the “11,780 votes” conversation as a part of the larger landscape of failed efforts to overthrow the election that set up the last resort to Pence? We will not presume to make that determination, since he and his colleagues have far more information. But we think it is telling that Smith did not interview Raffensperger until very recently,[22] suggesting that the special counsel may be engaged in the kind of narrowing process that we recommend.

What’s more, the narrowing process we analyze and the charges we focus on are ones that would not require a jury to find that Trump knew that he had lost the election. Although we think the proof is overwhelming that Trump was well aware he had lost, avoiding such an argument as an element of the affirmative case will make trying any such case simpler. (Trump can and likely will, of course, endeavor to raise these issues as defenses but as we discuss below, they are most likely to fail.) With respect to each charge assessed herein, proof of criminal intent can be established either with proof that electoral certificates were false; that Pence did not have authority to override the will of voters or to pause the count of electors; or purposeful support for the rioters in the Capitol.

With the public interest in mind, the optimal window of time to bring charges is a factor in our analysis, and thus we should say a few words about that factor. We cannot with certainty say when any charges will be filed, but there is reason to anticipate it could be as soon as this summer. Smith is as aware as anyone of the political calendar. The primary season is already commencing and will take off in earnest after Labor Day. That favors an indictment this summer, as is also suggested by news reports that Smith did not permit witnesses scheduled for June 2023 grand jury testimony to delay their appearances. An indictment over the summer would also allow the possibility of the case being tried within a year and before the July 2024 Republican National Convention.

Another factor favoring an indictment this summer is that Fulton County District Attorney Fani Willis, who has been overseeing a special grand jury investigation of Trump’s attempt to interfere with the 2020 election in Georgia, has announced her intention to make charging decisions in that case between the middle of July and September 1, with a narrower window expected in mid-August. Smith may wish to file charges before Willis does, since by doing so he can make his theory of the case public, minimizing the risk of a conflicting Fulton County indictment that could complicate the federal case.

To further simplify the case and facilitate an expeditious trial, it may be desirable to defer filing charges even if merited against others allegedly involved in the misconduct and/or referred by the Select Committee, such as Jeffrey Clark, the former DOJ official who allegedly conspired with Trump to misuse the Department to overturn the election, as well as other lawyers who assisted Trump in his fraudulent scheme to stay in power. They could be charged separately at a later time, given the general five-year statute of limitations. The American people are entitled to an adjudication of Trump’s criminal liability now, before they decide on his fitness to return to office—and so that if he does return and attempt to pardon himself (or is pardoned by another) or use other means to thwart the rule of law, there is a judicial adjudication. That is also potentially in his interest, as acquittal if the evidence is insufficient will clear his name from criminal liability.[23] Note that by contrast, the Fulton County case, as a state prosecution, is beyond federal pardon powers; it can likely continue to proceed even if Trump is elected, and so the same time constraints and need to narrow the case do not apply in the same way. (We do not, however, address state proceedings or their scope in this report.)

We are not in possession of the full grand jury record and other evidence available to prosecutors, and for that reason we are only able to analyze the application of the law to the facts if court filings and public reports are accurate. Trump and others named herein have denied wrongdoing. We include those denials, and the asserted bases for them, in our discussion below. If Trump or others are charged, they must be considered innocent until proven guilty. Our assessment that the known evidence meets the federal standards for prosecution should not be mistaken for a finding of ultimate culpability. Nor should our exclusion of certain charges from this document be read as a negative assessment of the merits of other possible offenses—in this memo, we instead focus, based on the public record, on the charges that appear to be strongest.

Because the analysis in this report supporting those conclusions is lengthy, this introduction is followed with an executive summary of the full report.

The model prosecution memorandum is available below as a SCRIBD file and also as a separate PDF.

Model Prosecution Memo January 6th Election Interference Just Security July 2023 by Just Security on Scribd

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _

  1. Maggie Haberman, Pence Appears Before Grand Jury on Trump’s Efforts to Retain Power, The New York Times (Apr. 27, 2023), https://www.nytimes.com/2023/04/27/us/politics/pence-grand-jury-trump.html. ↑
  2. Kristen Holmes, Katelyn Polantz & Hannah Rabinowitz, Mark Meadows testified to federal grand jury in special counsel probe of Trump, CNN (June 7, 2023), https://www.cnn.com/2023/06/06/politics/mark-meadows-grand-jury-trump-probe/index.html. ↑
  3. Ben Protess, Alan Feuer & Maggie Haberman, Giuliani Sat for Voluntary Interview in Jan. 6 Investigation, The New York Times (June 28, 2023), https://www.nytimes.com/2023/06/28/us/politics/giuliani-jan-6-investigation.html. ↑
  4. Alan Feuer & Glenn Thrush, Witness Testimony Helps Prosecutors Advance Trump Election Case, The New York Times (Apr. 13, 2023), https://www.nytimes.com/2023/04/13/us/politics/donald-trump-investigation.html. ↑
  5. Id. ↑
  6. Id. ↑
  7. Zachary Cohen, Exclusive: National security officials tell special counsel Trump was repeatedly warned he did not have the authority to seize voting machines, CNN (last updated Apr. 6, 2023), https://www.cnn.com/2023/04/05/politics/election-voting-machines-trump-national-security/index.html. ↑
  8. Rebecca Shabad & Gary Grumbach, Former Trump adviser Stephen Miller spends six hours at federal court where Jan. 6 grand jury meets, NBC News (Apr. 11, 2023), https://www.nbcnews.com/politics/donald-trump/former-trump-adviser-stephen-miller-appears-dc-federal-court-jan-6-gra-rcna79143. ↑
  9. 9 Kaitlan Collins, Former Director of National Intelligence John Ratcliffe testifies to grand jury in January 6 probe, CNN (Apr. 13, 2023), https://www.cnn.com/2023/04/13/politics/john-ratcliffe-testifies-grand-jury/index.html. ↑
  10. Katelyn Polantz, Kaitlan Collins & Casey Gannon, Former Trump DHS official Ken Cuccinelli testifying in grand jury investigation around 2020 election interference, CNN (Jan. 26, 2023), https://www.cnn.com/2023/01/26/politics/ken-cuccinelli-grand-jury/index.html. ↑
  11. Maggie Haberman & Alan Feuer, Former Trump Officials Must Testify in 2020 Election Inquiry, Judge Says, The New York Times (Mar. 24, 2023), https://www.nytimes.com/2023/03/24/us/politics/trump-mark-meadows-executive-privilege-jan-6.html. ↑
  12. Id. ↑
  13. Shannon McCaffrey, Raffensperger will talk to feds in Trump probe, The Atlanta Journal-Constitution (June 27, 2023), https://www.ajc.com/politics/raffensperger-will-talk-to-feds-in-trump-probe/Z3TJWQC32RCC3FULSGRLXIHQGE/. ↑
  14. Barbara McQuade, United States v. Donald Trump: A ‘Model Prosecution Memo’ on the Conspiracy to Pressure Vice President Pence, Just Security (Feb. 22, 2022), https://www.justsecurity.org/80308/united-states-v-donald-trump-model-prosecution-memo/. ↑
  15. Transcript: Former Attorney General William Barr on ‘Face the Nation,’ June 18, 2023, CBS News, https://www.cbsnews.com/news/william-barr-former-attorney-general-face-the-nation-transcript-06-18-2023/. ↑
  16. J. Michael Luttig, It’s Not Too Late for the Republican Party, The New York Times (June 25, 2023), https://www.nytimes.com/2023/06/25/opinion/trump-republican-party.html. ↑
  17. Certain portions of the language of this introduction are adapted from the introduction in that document. Andrew Weissmann, Ryan Goodman, Joyce Vance, Norman L. Eisen, Fred Wertheimer, Siven Watt, E. Danya Perry, Joshua Stanton & Joshua Kolb, Model Prosecution Memo for Trump Classified Documents, Just Security (June 2, 2023), https://www.justsecurity.org/86771/model-prosecution-memo-for-trump-classified-documents/. ↑
  18. Norman Eisen, Donald Ayer, Joshua Perry, Noah Bookbinder & E. Danya Perry, Trump on Trial: A Guide to the January 6 Hearings and the Question of Criminality, Governance Studies at Brookings (June 6, 2022), https://www.brookings.edu/articles/trump-on-trial/ (hereinafter “Trump on Trial”). ↑
  19. See, e.g., Ewan Palmer, Mark Meadows Flipping on Donald Trump Is ‘Game Over’—Legal Expert, Newsweek (May 25, 2023), https://www.newsweek.com/mark-meadows-trump-special-counsel-jan6-1802571. ↑
  20. Protess, Feuer & Haberman, supra note 3. ↑
  21. Fred Wertheimer & Norman Eisen, The Jan. 6 hearings spotlight a Trump smoking gun in Georgia, MSNBC (June 21, 2022), https://www.nbcnews.com/think/opinion/january-6-hearing-day-4-spotlights-trump-smoking-gun-georgia-rcna34417. ↑
  22. McCaffrey, supra note 13. ↑
  23. Some of these authors work at organizations that have publicly committed to challenging Donald Trump’s constitutional eligibility for office under Section Three of the Fourteenth Amendment. Relevant authorities may address such ineligibility without a determination on Trump’s liability for involvement in insurrection in the separate criminal proceedings we here address. ↑
IMAGE: Former US President Donald Trump speaks to supporters during a campaign event at the MidAmerica Center on July 07, 2023 in Council Bluffs, Iowa. (Photo by Scott Olson/Getty Images)

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