Indicting a former president is no minor task for any nation’s justice system to undertake. 


In modern times, there have been former presidents indicted for criminal wrongdoing in France, Israel, South Africa, Brazil, Bolivia, and South Korea, to name a few. 


In the 20th century, America had three former presidents who could have been indicted, convicted, and sent to prison for crimes they committed while President: Warren G. Harding (the Teapot Dome criminal conspiracy); Richard M. Nixon (the Watergate criminal conspiracy); and Ronald Reagan (the Iran/Contra criminal conspiracy).


The third former President of the United States in the 21st century, Donald J. Trump, is currently under criminal investigation by the U.S. Justice Department, the Manhattan District Attorney’s Office, and a Fulton County, Georgia grand jury


There is a reasonable probability that the former President will be indicted in one of the jurisdictions, but what is less certain is whether a conviction can be obtained against him. Afterall, juries are composed of members of the public, and the public is bitterly divided over Mr. Trump.


Justice Department prosecutors will focus their investigation on one or more, or even all, of the following charges: conspiracy, wire fraud, racketeering, election interference, witness tampering, and obstruction of justice. The lead charge would most certainly be conspiracy: whether Trump initiated or took part in a criminal effort to overturn the 2020 presidential election. 


The January 6 Select Committee has revealed highly credible evidence that the former President and a den of lunatic co-conspirators did, in fact, undertake a criminal effort to thwart Joe Biden from being certified as President by any means necessary. These actions included conspiring to change vote results, violence (directed at the Vice President, Democratic members of Congress, and Capitol Police officers), invasion of government buildings, and seizing control of Congress.


Federal Conspiracy Statute


But what would it take to prove such a conspiracy under the general federal conspiracy statute, 28 U.S.C. § 371?


A conspiracy under § 371 is an agreement between two or more persons to conspire to commit any offense against the United States, or to defraud the United States. The conspirators do not have to achieve their objective for it to be a violation of § 371.


Thus, there are two prongs under which the Government may proceed in a § 371 prosecution: the commit an offense or the defraud the United States.


The Government, in all likelihood, would proceed against Trump under the “defraud the United States” prong. There are generally four elements the Government must prove beyond a reasonable doubt to secure a “defraud” conviction:


  1. The defendant entered into an agreement;
  2. To obstruct a lawful function of the Government;
  3. By deceitful or dishonest means; and
  4. Committed at least one overt act in furtherance of the conspiracy.


A conspiracy to defraud under section 371 embraces “any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.” Therefore, Government would have to prove that Trump tried to block the January 6, 2021, Congressional certification of Joe Biden as President through “deceit, craft, or trickery, [and] by means that [were] dishonest.” 


Lawful Function of The Government


The January 6, 2021, Congressional certification hearing was a legitimate government function protected by law from outside interference.


The significance of the defraud prong is that a defendant can be charged with conspiracy under the statute without any charge of violating another substantive statute.


Of course, the Government could elect to indict Trump under both prongs of § 371, given the laundry list of possible offenses Trump and his cohorts violated.


A conspiracy to defraud indictment, to be constitutionally sound, need only allege with specificity “the essential nature of the alleged fraud,” particularly identifying the conduct which furthered the conspiracy.


While the Government bears the burden of proving the alleged fraud beyond a reasonable doubt, the federal courts have uniformly held that, “Circumstantial evidence may establish the existence of a conspiracy, as well as an individual’s voluntary participation in it.” 


As experienced criminal defense lawyers are painfully aware, most federal conspiracy cases are not proven by direct evidence but by circumstantial evidence supported by co-conspirator testimony.


The critical issue in a Trump prosecution would be overcoming the former President’s defense that he “subjectively” believed there was fraud in the November 2020 presidential election. That being the case, his attorneys would argue that he lacked the required mens rea to either initiate or enter into a conspiracy to defraud the United States.


 The Government would counter that defense with overwhelming, irrefutable evidence that Trump was told repeatedly by Attorney General Bill Barr, White House counsel Pat Cipollone, countless individuals in the White House inner circle, and more than 60 court decisions that there was no credible evidence of voter fraud sufficient to change the results of the 2020 presidential election. The former President’s recorded conversations, public statements, and tweets would support the Government’s case.


Trump rejected this evidence. Instead, he sent out a tweet on December 19, 2020, urging his supporters to descend upon the nation’s capitol to engage in a “wild” protest on January 6, 2021, while Congress was in session to certify the election.


Based on all the efforts the former President engaged in trying to establish “massive fraud” in the wake of the November 2020 presidential election, the jury would have to determine whether Trump’s actions were intended to 1) interfere or thwart the Congressional certification hearing, 2) pressure the Vice President not to accept the certifications from crucial states, or 3) urged a crowd that included armed white supremacists to storm and seize control of the Capitol Building with force and violence.


In one way or another, most Americans have already reached their own verdict. Whether a jury will ever have to decide these issues remains unanswered. The more important question is whether our elected officials are servants of the people or have become royalty unaccountable to the rule of law.