Is it illegal to try to steal a presidential election?

The strange, tangled backstory to DOJ’s latest Trump indictment.

Is it illegal to try to steal a presidential election?

Special counsel Jack Smith’s indictment of Donald Trump this week holds that the answer is yes. Trump’s attempt to flip the results after the 2020 election, well before the events of January 6, Smith argues, amounted to a criminal conspiracy that violated three federal laws.

But throughout the history of this investigation, many other officials seemed to think the answer was no.

For about a year after the January 6, 2021, attack on the Capitol, the Justice Department’s attention was overwhelmingly focused on that attack itself, not on Trump’s two-month attempt to change the election results beforehand.

Many of Trump’s pre-January 6 actions that Smith cites in his indictment — such as his lobbying of swing state legislators, his organizing of “alternate” elector slates in key states, and his pressuring of Vice President Mike Pence — unfolded at least partly in plain sight or were reported by journalists at the time.

Throughout most and perhaps all of 2021, none of that seems to have been the focus of an investigation by the Justice Department, and in fact, proposals to investigate them were reportedly rejected by DOJ or FBI officials. There wasn’t a consensus then that these actions were actually criminal — many believed that though Trump’s known conduct may have been unethical and dangerous to democracy, it didn’t necessarily violate specific laws.

Now, though, Smith argues the president and his allies were engaged in a criminal conspiracy. The January 6 attack itself plays a relatively more limited role in Smith’s indictment — the main crime, he’s effectively arguing, was Trump’s whole lengthy effort to overturn Biden’s win.

The question of how and why the DOJ shifted so thoroughly on this topic is complicated, and still may not be fully understood.

But one way to understand the new indictment is that it’s an effort to draw a bright line around Trump’s actions, to make clear that nothing like this should happen again — from him, or anyone else.

The DOJ was reluctant to go after Trump for a year

As the political system grappled with what had happened on January 6, that violence — and its ensuing disruption of the vote count, which forced the vice president and members of Congress to flee for their lives — was initially treated as the major crime.

Trump’s own perceived culpability was that he had helped trigger the violence, especially with his speech at a rally that day. For instance, the House of Representatives quickly moved to impeach Trump for “incitement of insurrection.”

Similarly, the Justice Department treated the breach of the Capitol as the primary crime worthy of investigation. Throughout 2021, investigators devoted enormous resources toward tracking down and charging hundreds of people who physically breached the building.

DOJ’s inspector general also swiftly opened a probe into Jeffrey Clark, a former department official who the New York Times revealed had plotted with Trump to get DOJ involved in overturning the outcome. (Clark is now “Co-Conspirator 4” in Smith’s indictment.)

But, according to a detailed report by the Washington Post’s Carol Leonnig and Aaron Davis Washington Post, officials at DOJ and the FBI initially shot down several early 2021 proposals to probe Trump or his close allies. These included:

• A proposal by J.P. Cooney, a prosecutor in the US attorney’s office for DC, “to trace who had financed the false claims of a stolen election and paid for the travel of rallygoers-turned-rioters,” looking into Trump allies such as Roger Stone.
• A proposal to look into “documents that Trump used to pressure Pence not to certify the election for Biden.”
• A request by the National Archives to investigate “similarities in fraudulent slates of electors for Trump that his Republican allies had submitted to Congress and the Archives.”

The Pence pressure and fraudulent electors are both central planks of the alleged conspiracy indicted by Smith. Yet DOJ was uninterested in pursuing them at the time.

Leonnig and Davis’s sources cite a number of reasons for this hesitation — concern about insufficient evidence, fear that moving to investigate Trump would be “fraught with peril,” a lack of confirmed appointees in key DOJ positions, and a preference for a “bottom-up” approach that would go after Capitol rioters first and later potentially link them to Trump allies.

By late 2021, though, the strategy of pursuing rioters didn’t appear to be finding actionable links to Trump himself — raising the question of whether Trump would effectively get away scot-free for his attempted election theft. Critics from the left increasingly singled out Attorney General Merrick Garland for purportedly not doing enough to hold Trump accountable.

How the DOJ learned to stop worrying and love the conspiracy investigation

It wasn’t necessarily new information that changed investigators’ minds on Trump, but rather a change in perspective about existing information. And, per reports, the key was the “fake electors.”

Back on December 14, 2020, the members of the Electoral College officially cast their votes for either Biden or Trump. In states Biden won, Biden’s chosen electors got to vote for him. But in seven swing states won by Biden, Trump’s team orchestrated efforts for his own chosen electors to “cast” their electoral votes. They hoped to somehow turn these fake electors into the real electors, but never succeeded.

The gist of this had been known for some time. But a January 10, 2022, Politico story on the House January 6 committee’s investigation put a different glean on the matter, saying the committee was focused on “forged certificates” declaring Trump the winner of swing state electors that had been mailed to the National Archives. The “forgery” frame seemed to imply an easily understandable crime.

MSNBC’s Rachel Maddow quickly gave enormous attention to the question of these “forged” documents, spotlighting some that had been posted by an advocacy group months earlier, and basically making the topic go viral. Michigan’s Democratic attorney general, Dana Nessel, appeared on Maddow’s show on January 13 and said she referred the fake electors matter to the US Justice Department to investigate.

Two weeks later, Deputy Attorney General Lisa Monaco was asked about all this in a CNN interview and answered: “We’ve received those referrals. Our prosecutors are looking at those and I can’t say anything more on ongoing investigations.”

This was widely interpreted as a confirmation that the Justice Department was investigating the fake electors, but per Leonnig and Davis’s Post report, that was not actually happening yet. A few weeks later, they write, DC US attorney’s office prosecutors proposed such a probe to Steve D’Antuono, who headed the FBI’s Washington Field Office and had repeatedly shot down efforts to investigate Trump allies in the past. D’Antuono now accepted a full investigation because “mail fraud” could be the potential crime, but further bureaucratic wrangling over whether Trump would be named as the subject ensued.

The whole sequence of events is rather odd. This wasn’t typical “forgery,” because there was no danger of Pence, members of Congress, or the Archives being somehow tricked into thinking these electoral slates were the authentic electoral votes. Rather, these were a tool Trump hoped to use to steal the election. But, again, to some FBI and DOJ officials, the argument that Trump’s attempted election theft was a crime remained controversial. They seemed to want a backdoor way into it rather than going at it directly. Hence mail fraud.

Yet the case for going at Trump head-on soon got approval from an unexpected source: a federal judge.

In a lawsuit over subpoenaed records and attorney-client privilege, the January 6 committee had argued in court that Trump had committed a crime. They argued that he had obstructed an official proceeding (Congress’s count of the electoral votes on January 6), and that he had conspired to defraud the United States (by interfering with the vote certification). This was the first big test of Democrats’ legal theory about Trump’s lawbreaking.

The judge in the suit, David Carter of the Central District of California, endorsed their arguments in a remarkable March 2022 ruling, writing that it was “more likely than not” that Trump committed both of those crimes. He added that Trump’s team launched “a coup in search of a legal theory” that “spurred violent attacks on the seat of our nation’s government.”

Soon afterward, DOJ’s investigation was in full swing. In April 2022, the Department obtained Trump aides’ phone records. In May, word of a serious DOJ investigation into Trump allies’ fake electors plot leaked out with a flurry of subpoenas. By June, the inspector general’s investigation into Clark had become a criminal probe, and investigators searched Clark’s home. In July, the Washington Post reported that investigators were considering conspiracy charges. And by September, an investigation into the Trump team’s money had finally been approved and started sending out subpoenas.

By the time Smith was appointed special counsel in charge of the probe in November, there was a team of 20 prosecutors for him to take over — a large operation. And when Smith finally filed his indictment in the case this week, he didn’t mess around with penny-ante mail fraud. In addition to obstruction of an official proceeding and conspiracy to defraud the United States — the two charges endorsed by Judge Carter — he added another charge of conspiracy to disenfranchise voters.

This is a deliberate effort to criminalize Trumpian election theft — and that’s good

Trump’s allies are crying foul and arguing that Smith is trying to criminalize typical political conduct that Trump and others didn’t believe was illegal. That’s not quite right. Smith is trying to criminalize Trump’s atypical conduct of trying to steal an election.

A situation like Trump’s attempt to stay in office had never before occurred in US history. It wasn’t immediately clear to many whether his conduct was actually illegal. The indictment is an argument that it is.

Smith acknowledges early on in the indictment that Trump was “entitled to formally challenge the results of the election through lawful and appropriate means” — by filing legal challenges or seeking recounts or audits. That is, contesting the election isn’t illegal.

The special counsel also writes that Trump had the right “to speak publicly about the election and even to claim, falsely,” that massive fraud had occurred and he was the rightful winner. That is, lying about the election isn’t illegal.

But, Smith argues, the combination of Trump’s reliance on false claims with his efforts to get state officials, state legislators, and the vice president to change the outcome together makes for an illegal conspiracy.

Will this legal reasoning hold up in court? It’s too early to say for sure — the Supreme Court may have its say. The stakes here, though, go beyond Trump himself. The indictment is also an attempt by Smith to lay down a marker — for Trump, and for any future would-be election thieves — that it is not acceptable to try and steal elections in the United States of America.