During its hearings last year and in its final report, the House Select Committee to Investigate the January 6th Attack on the United States Capitol carefully examined former President Donald Trump’s multi-part plan to overturn the 2020 presidential election. The Select Committee concluded that Trump oversaw a sophisticated plot that was intended to subvert the will of the people. In the newly released indictment, Special Counsel Jack Smith describes Trump’s conspiracy against American democracy in very similar terms.
As one of the principal authors of the Select Committee’s final report, I read the indictment with an eye to what new evidence Smith and his team had unearthed. Of course, the indictment does not cite all the evidence they have in their possession. The 45-page indictment is also much shorter than the Select Committee’s 845-page report. But it is clear the Special Counsel’s office did secure access to some new highly valuable testimony and documents, including Vice President Mike Pence’s testimony and contemporaneous notes. Still, the analysis and finer points embedded in the indictment are importantly very similar to those produced by the Select Committee.
What follows are some initial observations on the indictment – including the significance of new evidence it indicates are in the Justice Department’s hands. The indictment follows the same general structure as the Select Committee’s final report, so the parallels and comparisons between the two are noted throughout.
The Big Lie
The Special Counsel’s summary of the first part of the conspiracy can be found on pages six through nine of the indictment and is titled, “The Defendant’s Knowledge of the Falsity of His Election Claims.” This section is consistent with Chapter 1 of the Select Committee’s final report: “The Big Lie.”
Simply put, Trump knew he lost the election, repeatedly lied about it, and then used the lies to justify his scheme to overturn the 2020 presidential election’s results. Multiple administration insiders, including his own Vice President and senior Department of Justice officials, campaign staffers, as well as Republican state officials and legislators made it clear to Trump that his specific claims of election fraud had no merit. The courts repeatedly debunked the Trump campaign’s false claims as well. Trump repeatedly lied anyway, including during his incendiary January 6th speech at the White House Ellipse.
Some argue that Trump’s lies are protected by the First Amendment. But the indictment makes quick work of that specious argument. The Special Counsel writes that Trump “had a right, like every American … even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” However, Trump did not have the right to “knowingly” use those false statements as part of his “criminal plans to defeat the federal government function, obstruct the certification, and interfere with others’ right to vote and have their votes counted.” Trump’s lies were, appropriately in the words of the indictment, “integral” to Trump’s criminal plans.
There are additional facts that bolster the indictment on this point – facts that demonstrate Trump intended to lie all along. Chapter 1 of the January 6th Committee’s report shows that Trump never intended to concede defeat. Prior to the election, Trump refused to commit to the peaceful transfer of power. And some of his closest political advisors, including Steve Bannon and Roger Stone, said ahead of time that Trump would and should falsely declare victory on Election Night.
In the weeks and months preceding the election, Trump repeatedly lied about the security of mail-in balloting. This was no accident. Trump knew there would be a “Red Mirage” on Election Night. Whereas election day voting would favor Trump, millions of mail-in votes would not be counted until after election day. It was widely understood that those mail-in votes would favor Biden. Therefore, while it would initially appear that Trump was in the lead, no one would know the actual winner by Election Night. Trump’s own campaign manager warned him that this would be the case. Trump falsely declared victory anyway. He then unleashed the torrent of lies documented in the indictment and Chapter 1 of the Select Committee’s report, including more falsehoods about mail-in balloting.
The State Pressure Campaign
The Special Counsel’s summary of the second part of the conspiracy begins on page nine of the indictment and concludes on page 21. It is titled: “The Defendant’s Use of Deceit to Get State Officials to Subvert the Legitimate Election Results and Change Electoral Votes.” This section lines up with Chapter 2 of the Select Committee’s report: “I Just Want to Find 11,780 Votes.”
Both the indictment and the report detail how Trump, “Co-Conspirator 1” (that is, Rudy Giuliani), and others pressured state officials to overturn the election’s results in seven key states: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin. Trump’s efforts were squarely aimed at Republicans, including governors, secretaries of state, and members of the state legislatures. The public pressure Trump and others brought to bear led to death threats against some of these same Republicans, as both the indictment and the report make clear.
Rusty Bowers, a Republican who was the Speaker of the House in Arizona in 2020, was a star witness during the January 6th Select Committee’s hearings. Bowers is identified only as the “Arizona House Speaker” in the indictment. The Special Counsel alleges that Trump and Giuliani specifically solicited Bowers “to use the legislature to circumvent the process by which legitimate electors would be ascertained for Biden based on the popular vote and replace those electors with a new slate for” Trump. The Select Committee similarly described the purpose of Trump’s and Giuliani’s pressure on Bowers: “They wanted Bowers to hold a public hearing with the ultimate aim of replacing Presidential electors for former Vice President Joe Biden with electors for President Trump.”
This is just one example of how Trump attempted to disenfranchise voters. Biden won Arizona by a slim margin. Trump and Giuliani wanted Bowers to abuse his power as House Speaker to help overturn the election’s results. Bowers refused, correctly arguing that this wasn’t within his constitutional authority. He had to ward off a similar entreaty from “Co-Conspirator 2” (John Eastman) a few weeks later.
Bower’s testimony also demonstrates why Trump’s and Giuliani’s election lies aren’t protected by a First Amendment defense. Trump and Giuliani used these lies to pressure Bowers and multiple others. During a December 1, 2020 conversation with Bowers, for instance, Giuliani cited various conspiracy theories about the voting in Arizona. When Bowers asked Giuliani to produce actual evidence, Giuliani responded with words to the effect of, “We don’t have the evidence, but we have lots of theories.”
Trump oversaw multiple other efforts to pressure state officials, including by filing phony lawsuits. One such suit was brought against Georgia’s Governor, Brian Kemp. On Nov. 16, 2020, Trump’s executive assistant sent “Co-Conspirator 3,” who has been identified as Sidney Powell, an email with a document criticizing “a certain voting machine company” (Dominion Voting Systems). Trump’s executive assistant wrote on his behalf: “See attached – Please include as is, or almost as is, in lawsuit.” Nine days later, on Nov. 25, Powell filed suit against Kemp, alleging that this same voting machine company’s hardware and software allowed for “massive election fraud” to occur. That is, Powell filed the suit just as Trump had asked. The indictment makes clear that Trump knew at the time and confided privately to others that the voting machine claims were “unsupported” and sounded “crazy.” The suit was dismissed on December 7, but Trump repeatedly promoted the Dominion conspiracy theory in the weeks that followed, including during his January 6th speech.
This section of the indictment contains other details showing how Trump personally oversaw and directed the state pressure campaign.
The Fake Electors
The Special Counsel’s summary of the third part of the conspiracy can be found on pages 21 to 27 of the indictment and is titled, “The Defendant’s Use of Dishonesty, Fraud, and Deceit to Organize Fraudulent Slates of Electors and Cause Them to Transmit False Certificates to Congress.” This corresponds to Chapter 3 of the Select Committee’s final report: “Fake Electors And ‘The President of the Senate Strategy’.”
The Trump team has long claimed that on Dec. 14, 2020 – the same day the real electors met and cast their votes — the fake (“alternate”) electors convened in seven states Biden had won merely to preserve Trump’s rights should election-related litigation reverse the outcome in any one of those states. Both the indictment and the Select Committee’s report show why this is not true.
The Special Counsel observes that the fake electors scheme was based on “memoranda drafted by Co-Conspirator 5,” who has been identified as Kenneth Chesebro, an attorney who worked with the Trump campaign. Importantly, the Special Counsel writes that Chesebro’s “memoranda evolved over time from a legal strategy to preserve [Trump’s] rights to a corrupt plan to subvert the federal government function by stopping Biden electors’ votes from being counted and certified.” Also significantly, the indictment references a Dec. 6 memorandum, which appears to be a new piece of evidence and not included in the Select Committee report. Paraphrasing the memo, the indictment says that it suggested “on January 6, the Vice President should open and count the fraudulent votes, setting up a fake controversy that would derail the proper certification of Biden as president-elect.”
The bottom line: By December 14, 2020, when Trump’s fake electors met, the effort was not really tied to legitimate litigation. Indeed, the Special Counsel details how the Trump team deliberately filed lawsuits challenging the election’s results in Arizona and New Mexico as a “pretext” to justify the fraudulent electors. In other words, the false certifications were not contingent on the litigation; the litigation was contingent on the false certifications. The Special Counsel makes it clear that the fake electors were fully part of Trump’s scheme to obstruct the joint session of Congress on Jan. 6, and that the scheme was conducted “at the direction of” Trump and Giuliani.
Trump’s attempt to use the Department of Justice to help him overturn the election
Pages 27 to 31 of the indictment cover the fourth part of the conspiracy, which is titled: “The Defendant’s Attempt to Leverage the Justice Department to Use Deceit to Get State Officials to Replace Legitimate Electors and Electoral Votes with the Defendant’s.” That’s a long-winded way of saying that Trump tried to use the power of the DOJ to overturn the election, which is covered in Chapter 4 of the Select Committee’s report: “Just call it corrupt and leave the rest to me.”
When the DOJ’s senior leadership refused to endorse Trump’s lies and claim that there was significant fraud in the election, Trump sought to install a loyalist as the Acting Attorney General. That man is “Co-Conspirator 4,” who has been identified as Jeffrey Clark.
Clark drafted a letter that Trump wanted DOJ to send to Georgia and then the six other states, falsely claiming that the DOJ had “identified significant concerns that may have impacted the outcome of the election in multiple States.” The indictment also includes a new twist: “On January 3, despite having uncovered no additional evidence of election fraud, [Clark] sent to a Justice Department colleague an edited version of his draft letter to the states, which included a change from its previous claim that the Justice Department had ‘concerns’ to a stronger false claim that ‘[a]s of today, there is evidence of significant irregularities that may have impacted the outcome of the election in multiple States.’”
The Special Counsel explains that the purpose of Clark’s letter was to encourage Georgia’s state legislature (and then other state legislatures) to “convene a special legislative session to create the opportunity to, among other things, choose the fraudulent electors over the legitimate electors.”
In other words, Trump wanted to use the DOJ’s power to help him steal the election. Clark, unlike other, more senior DOJ officials, was willing to oblige. Trump begged off this gambit when virtually all the DOJ’s senior personnel as well as lawyers in the White House Counsel’s Office threatened to resign.
The indictment’s summary of this part of the conspiracy tracks closely with the evidence cited in Chapter 4 of the committee’s report. But another potentially new piece of evidence appears to have been provided by Deputy White House Counsel Patrick Philbin. Philbin allegedly told Trump that “there is no world, there is no option in which you do not leave the White House [o]n January 20th.” That is a telling quote, as it shows the White House Counsel’s Office had to be at least somewhat concerned that Trump did not intend to leave. And, presumably, coming from the White House Deputy Counsel, no option meant no legal option.
In another exchange, this time with Jeffrey Clark, Philbin warned that there was no evidence the election was stolen and if Trump tried to remain in office there would be “riots in every major city in the United States.” To which “Co-Conspirator 4” (Clark), allegedly replied: “Well, [Deputy White House Counsel], that’s why there’s an Insurrection Act.” The implication of Clark’s remark is that Trump could, or perhaps even should, use force to stay in power.
The indictment also contains a new piece of evidence concerning Trump’s statements during a Jan. 3, 2021 meeting between Trump, Clark, DOJ officials and others in the Oval Office. During that meeting, according to the Special Counsel, “Co-Conspirator 4” (Clark) allegedly suggested that the DOJ “should opine that the Vice President could exceed his lawful authority during the certification proceeding and change the election outcome.” Steven Engel, the Assistant Attorney General for the Office of Legal Counsel, began to explain why the DOJ should not do that when Trump himself interjected.
“No one here should be talking to the Vice President,” Trump said. “I’m talking to the Vice President.”
This section also indicates the extent to which the Special Counsel is likely presenting only a subset of the most compelling evidence. For example, the indictment does not include White House Counsel Pat Cipollone calling the Clark draft letter a “murder suicide pact” in the Jan. 3, 2021 Oval Office meeting with Trump. Nor does the indictment include the Jan. 3 draft resignation letter by senior DOJ officials, which stated, “Acting Attorney General Jeff Rosen over the course of the last week repeatedly refused the President’s direct instructions to utilize the Department of Justice’s law enforcement powers for improper ends.” There are additional details in the Select Committee’s report as well, including colorful testimony from former Attorney General Bill Barr. While Barr was loyal to Trump on many issues, he would not endorse Trump’s election lies. Ultimately Barr resigned in mid-December 2020 and his resignation set in motion the events described above.
Trump’s pressure campaign against Vice President Pence
The fifth part of the conspiracy is summarized on pages 32 to 39 of the indictment in a section titled, “The Defendant’s Attempts to Enlist the Vice President to Fraudulently Alter the Election Results at the January 6 Certification Proceeding.” This section corresponds to Chapter 5 of the Select Committee’s report: “A Coup in Search of a Legal Theory.”
Pence did not testify before the January 6 Select Committee. But key witnesses did, including the vice president’s counsel and chief-of-staff, so this part of the conspiracy is already well-established. Still, the Special Counsel has added some new pieces of evidence from private meetings, including the “Vice President’s contemporaneous notes” and testimony that seemingly confirms Pence’s published memoir. This evidence doesn’t change what we know, but it may strengthen the case brought before the jury, as it appears these new details are coming from Pence himself – a powerful witness.
It is important to understand, as the Special Counsel writes, that Trump pressured Pence to take one of three illegal paths on Jan. 6: [1] accept the “fraudulent electors, [2] reject legitimate electoral votes, or [3] send legitimate electoral votes to state legislatures for review rather than count them.” The Select Committee’s report explains at length how Eastman, a lawyer working with Trump (and identified as “Co-Conspirator 2” in the indictment) developed this unconstitutional plan and helped Trump push it. The indictment covers some of the same ground.
In his book, So Help Me God, Pence offered new firsthand details from his conversations with Trump. It appears that Pence corroborated these details when he testified before the Grand Jury. Here are several examples, from the indictment, of comments that either Pence or Trump made in direct conversations between the two:
On Christmas Day 2020, Trump pressed Pence to reject electoral votes on Jan. 6, 2021. Pence replied, “You know I don’t think I have the authority to change the outcome.”
On Dec. 29, Trump lied to Pence, claiming that the “Justice Dept [was] finding major infractions.” (The source for this quote is Pence’s “contemporaneous notes.”)
On New Year’s Day 2021, Trump called Pence and “berated” him for opposing a lawsuit filed against him (Pence) by Congressman Louie Gohmert and other plaintiffs, including fake electors from Arizona. As explained by the Special Counsel, the Gohmert lawsuit was an attempt to assert that Pence had the constitutional authority to “reject or return [electoral] votes to the states.” After Pence repeated that he did not think he had such authority, and it would be “improper,” Trump responded: “You’re too honest.”
This last remark from Trump – first recounted in Pence’s book – is damning and will likely stick in a jury’s mind.
The indictment also cites an exchange during a Jan. 4, 2021, meeting, which Pence also wrote up in his book. During that meeting, Trump made it clear that he would “prefer” if Pence rejected Biden’s electors unilaterally, a move that would have handed Trump the presidency.
Trump’s dereliction of duty during the attack on the U.S. Capitol
The final narrative section of the indictment can be found on pages 39 to 42 and is titled, “The Defendant’s Exploitation of the Violence and Chaos at the Capitol.” This section generally corresponds to Chapter 7 of the Select Committee’s report: “187 Minutes of Dereliction.”
This part of the story is, again, well-known. So, there is no need to recount all the details here. But the Special Counsel recounts how: Trump’s first tweet during the attack was an incendiary statement aimed at Vice President Pence; Trump was reticent to issue a statement telling his supporters to leave the U.S. Capitol, despite multiple entreaties from those around him; and Trump still sought to delay the joint session of Congress after the violence had been quelled, among other details.
To be sure, there are parts of the Select Committee’s report that are not covered in the indictment that are related to this part of the scheme. The indictment also does not have a comparable section to Chapter 6 (“Be There, Will Be Wild!”), which details how Trump summoned a mob riddled with right-wing extremists to Washington, D.C. for Jan. 6. Nor does the indictment provide an analysis of the attack, as the Select Committee did in Chapter 8.
The Select Committee’s report also included four appendices that covered a range of other topics.
But it is likely that Jack Smith was focused on Trump’s political conspiracy, which caused the violence at the U.S. Capitol. In that regard, the Special Counsel’s indictment lines up well with the Select Committee’s final report. And make no mistake: The indictment lays blame for the attack on the U.S. Capitol at Trump’s feet.
On January 6, page six of the indictment reads (emphasis added), Trump and his co-conspirators “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.”
That is, Trump sent a mob of his supporters down to the U.S. Capitol to obstruct the joint session of Congress – a federal crime for which many January 6th defendants have been charged.