(WASHINGTON) — The three separate criminal statutes that sources say are referenced in the target letter former President Donald Trump received over the weekend could offer hints as to what he could ultimately be charged with if special counsel Jack Smith moves forward with indicting him over his efforts to overturn the 2020 election.
The three statutes include conspiracy to commit offense or to defraud the United States; a civil rights conspiracy charge; and tampering with a witness, victim or informant, according to sources.
It’s not clear whether Smith will seek an indictment based on any of the statutes sources say are referenced in the target letter, or what range of charges Trump could ultimately face. The former president has denied all wrongdoing and dismissed Smith’s probe as a political witch hunt.
Here’s what legal experts say the indictment could look like if Trump is ultimately charged with respect to his and others’ alleged conduct regarding his election loss.
Conspiracy to commit an offense and defraud
According to the U.S. criminal code, this potential charge would relate to 18 U.S.C. 371, a general conspiracy statute making it an offense if “two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.”
Randall Eliason, a law professor at George Washington University and a former assistant U.S. attorney, described the conspiracy statute as a “go-to” for prosecutors who are seeking to join together one or more defendants in a common charge that tells the story of a case.
“Once you have conspirators then it’s a charge you’ll almost always see included, because it covers the agreement to commit any federal crime,” Eliason said.
Widge Devaney, a former assistant U.S. attorney, told ABC News the conspiracy charge would be the “easiest” for Smith to prove.
“That’s almost like an omnibus that you could fit a lot of conduct under, as long as the government is the victim,” Devaney said.
The statute includes two separate prongs: conspiracy to commit an offense against the United States, and conspiracy to defraud the United States.
While the first prong could involve a conspiracy to violate any criminal statute, the second is less commonly deployed, according to Eliason — but has been interpreted by the Supreme Court “to include any conspiracy to obstruct or impede the lawful functions of the U.S. government through deceit or unlawful methods.”
“It gives prosecutors kind of an alternative way to charge the idea that these defendants agreed to obstruct the lawful functions of the U.S. in conducting and certifying the presidential election,” Eliason said. “So you can argue that conspiracy was pressuring state officials, part of the conspiracy was sending the fake electors, part of it was summoning the mob on Jan. 6 and sending to the Capitol, part of it was pressuring [former Vice President] Mike Pence.”
“They can all be part of a single charge,” Eliason said. “And so it’s a really great vehicle to get the whole story and wrap it all up into one.”
Trump wouldn’t necessarily need to be charged alongside another individual as part of the conspiracy, according to experts, as any eventual indictment could instead make reference to others “known and unknown to the grand jury,” who could be cooperating with the government or even added to a later superseding indictment.
Conspiracy against rights
Conspiracy against rights is the title for 18 U.S.C. 241, which makes it a crime for two or more persons to “conspire to injure, threaten, or intimidate a person in the United States in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States, or because of his or her having exercised such a right.”
The references to the Reconstruction-era federal civil rights statute has caught some legal experts by surprise, even as some argue that it could technically apply to some of the actions Trump took in the days leading up to the Jan. 6 attack on the Capitol, when he sought to overturn the election results in seven swing states that voted for Joe Biden.
“I’m guessing the way they would frame this would be that Trump conspired with others to deprive the voters, maybe those seven states where they were contesting the election — deprive those voters of their right to vote, basically,” Eliason said.
Eliason said that there is no explicit “right to vote” stated in the Constitution, so a legal argument behind such a charge would have to allege Trump and others conspired to deprive voters of other rights expressed in the Constitution such as due process or equal protection under law.
“Equal protection meaning other people’s votes are counting and mine aren’t, because you’re throwing my votes out or diluting my vote or things like that,” Eliason said.
Asha Rangappa, a former FBI special agent and ABC News contributor, said the statute could also offer a way for Smith to address the assault on the Capitol in his indictment of Trump without having to tie Trump directly to it.
“It seems like a way to charge insurrection without charging the statute that would create First Amendment challenges,” Rangappa said. “The victims would be the millions of voters whose votes Trump was trying to prevent from being counted via the false elector scheme.”
While sources say the target letter to Trump cites tampering with a witness, victim or informant, the reference to obstruction is the title of the 18 U.S.C. 1512 statute, which involves a much broader range of various obstruction offenses.
Legal experts ABC News spoke with agreed this most likely relates to a provision of the statute involving obstructing an official proceeding, which the Justice Department has used in more than 310 cases against individuals charged in connection with the Jan. 6 assault on the Capitol.
The statute was long believed to be among those weighed by prosecutors examining Trump’s efforts to prevent then-Vice President Mike Pence from certifying President Biden’s election win on Jan. 6. The charge was also the first named by the House Select Committee Investigating the Jan. 6 attack on the Capitol in their final report, in which they issued criminal referrals for Trump to the Justice Department.
Unlike many of the rioters who have been convicted of the charge, Trump was not part of the physical breach of the building that disrupted the certification of the vote.
But the Justice Department has used the statute to achieve successful convictions of others who never entered the Capitol — including Oath Keepers militia founder Stewart Rhodes, who was in the area but remained outside the Capitol building during the attack, and Proud Boys leader Enrique Tarrio, who wasn’t even in Washington, D.C. during the riot.
“When it comes to Trump, the 1512 charge wouldn’t be limited to just the riot,” Eliason said. “The charge isn’t limited to that — it doesn’t require force or violence. So I think against Trump the charge would be broader and very similar to the conspiracy charge in that it would have all these different prongs [that] he sought to obstruct the congressional proceeding.”
However, attorneys representing other Jan. 6 defendants have challenged the use of the 1512 charge with respect to the Capitol attack. Earlier this year, a three-judge panel at the D.C. Circuit Court of Appeals upheld the charge’s use against three rioters accused of violence — but a separate challenge regarding the requirement of proof that a defendant acted “corruptly” in their effort to obstruct the vote certification is still being considered by another appeals court panel.
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