Donald Trump, Jan. 6 and Jack Smith’s Election-Interference Probe Explained

Special counsel Jack Smith told former President Donald Trump’s legal team on July 16 that Trump is a target of the investigation into efforts to reverse Trump’s 2020 election loss, culminating in the Jan. 6, 2021, attack by Trump supporters on the Capitol as Congress was set to certify that outcome.

The notification is a strong sign that Trump could be indicted in the far-ranging probe. Here is a look at what we know about that potential case and the others Trump faces as he fights to win the Republican 2024 presidential nomination.

How soon could Trump be indicted?

It isn’t clear. Trump was indicted in Smith’s separate probe into his handling of classified documents just one day after The Wall Street Journal and other news outlets reported that the former president’s legal team had received a target letter. In this case, Trump said the Justice Department notified his team on Sunday, July 16, and gave him four days to say whether he would appear before the grand jury. But that timeline doesn’t give clear clues as to whether or when a grand jury will return an indictment. Grand jurors have continued to hear witnesses in recent days, people familiar with the matter said, a suggestion that their work continues.

What could Trump be charged with in Smith’s election probe?

A person familiar with the target letter said it refers to three statutes that could be the basis for prosecution: conspiracy to defraud the government; obstruction of an official proceeding; and a civil-rights violation that is often used in voting-fraud cases. The potential charges suggest prosecutors believe they have amassed evidence to prove Trump worked with others to undermine President Biden’s election win.

Why charge Trump with a civil-rights offense?

Trump could be charged with at least one of two statutes passed following the Civil War and originally designed to prosecute conspiracies to keep newly freed Black people from voting. Federal prosecutors in Brooklyn, N.Y., used one of the statutes in their case against a Trump supporter who tried to deprive voters’ rights during the 2016 presidential election. Douglass Mackey, who pleaded guilty in March, used Twitter to spread false information urging supporters of candidate Hillary Clinton to vote invalidly via text message or social media; thousands did. Prosecutors said the deceptive ads amounted to a voter suppression scheme.

Those statutes could come into play in Smith’s 2020 election probe, legal experts said, as prosecutors have been examining a variety of efforts by Trump and his allies to reverse his election loss, including pressuring state officials to find ways to overturn the outcome and promoting plans to send fake slates of electors to Congress.

What does a charge of conspiracy to defraud the government mean?

This broadly written statute prohibits agreement to obstruct a lawful function of the government by deceitful or dishonest means. In March 2022, a federal judge said Trump’s postelection conduct likely violated this law, which was among the four charges referred to the Justice Department for possible prosecution by the House select committee probing the Jan. 6, 2021, riot at the Capitol.

The congressional panel concluded Trump conspired to defraud the U.S. by interfering with the election-certification process, spreading false information about widespread voter fraud, and pressuring state officials to alter election results and federal officials to assist in that effort.

Any conspiracy charge would raise questions about who Trump’s co-conspirators might be. Several high-profile people in Trump’s orbit, including his then-personal attorney Rudy Giuliani,

What about obstruction of an official proceeding?

The law punishes “whoever corruptly alters, destroys, mutilates or conceals a record, document or other object…or otherwise obstructs, influences or impedes any official proceeding.” It is a provision in the 2002 Sarbanes-Oxley Act, passed in the wake of the Enron accounting scandal.

The Justice Department has used it to address evidence tampering and deployed it against hundreds of alleged rioters who tried to prevent Congress from formally counting Electoral College votes on Jan. 6, 2021. Some defendants have tried to argue that the charge was meant to apply to crimes like witness tampering or document destruction rather than what some defendants called the “ceremonial or ministerial” event of certifying electoral votes. Those arguments haven’t been successful to date.

What has Trump said about the potential charges and any defense?

He has attacked Smith as “deranged,” denied any wrongdoing and called the investigation an attempt by the Biden administration to undermine him as he makes another bid for the White House. His supporters have said he was acting because he truly believed the election was stolen from him and was genuinely concerned about the possibility of voter fraud.

Would a conviction prevent Donald Trump from serving as president if he wins in 2024?

In theory, a felony conviction wouldn’t necessarily disqualify a person from serving as president. Some legal scholars have raised the possibility that an obscure section of the 14th Amendment that disqualifies those who have participated in “insurrection or rebellion” against the United States might bar Trump from taking office. The disqualification clause, written and ratified in the shadow of the Civil War, applies to current and former federal, state and military officials—and there is a debate about whether it applies to the president. In addition, almost no modern case law exists on the provision, and it might take a vote of Congress to enforce it.

How might a case against Trump related to the 2020 election differ from the Mar-a-Lago classified documents case?

Despite possibly having the same defendant, the two prosecutions are separate and different. The Mar-a-Lago case, in which Trump is charged with 37 counts related to the unlawful retention of national-defense information, relates to documents that the government alleges were retained after the former president left office. In principle that could make it easier for the Justice Department to lay out its case; in practice, though, it means a lengthy process of deciding how to deal with classified documents in court without airing the national-security secrets they contain. When the classified documents case comes before a jury, it will be drawn from the strongly pro-Trump population of St. Lucie County, Fla. The judge in that case, Aileen Cannon, was appointed by Trump and made several rulings favorable to his team in a lawsuit he brought last year related to the documents the FBI seized in August from his Mar-a-Lago resort.

Any charges related to the 2020 election would likely be tried in Washington, less than a mile from the U.S. Capitol that was ransacked by Trump’s supporters. Trump and his legal team have long contended that a Washington jury pool skews Democratic and would be biased against him. Such a criminal trial would also pull from a broader swath of evidence, far less, if any, of it classified.

What is the likely timing of all these trials?

On Friday, Cannon set a trial date of May 20, 2024, in Fort Pierce, Fla., where she is based. She rejected Trump’s efforts to delay the trial until after the presidential campaign but also declined to set it in December as the Justice Department had requested, writing, “the Government’s proposed schedule is atypically accelerated and inconsistent with ensuring a fair trial.”

Trump’s trial in Manhattan is set to begin on March 25 on 34 state felony counts of falsifying business records to hide hush money paid to suppress potentially damaging sexual allegations during his 2016 presidential campaign.

Fani Willis, the district attorney of Fulton County, Ga., has been investigating attempts by Trump and his allies to overturn President Biden’s narrow victory in that state. Willis has said she would announce “charging decisions” before September. She told the Journal earlier this month that she was proceeding on that course and hasn’t focused on any other probes involving the former president.

—Byron Tau contributed to this article.

Write to Sadie Gurman at [email protected]