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 involve ed in overturning the outcome. (Clark is now “Co-Conspirator 4” in Smith’s indictment.)
But, according to a detailed report by the ’s Carol Leonnig and Aaron Davis , officials at DOJ and the FBI initially shot down several early 2021 proposals to probe Trump or his close allies. These included:
The Pence pressure and fraudulent electors are both central planks of the alleged conspiracy indicted by Smith.
