With former President Donald Trump saying that he’s been notified that a Washington-based grand jury is investigating him in relation to the Jan. 6, 2021, U.S. Capitol protest and breach, a commentator who’s been closely following Jan. 6-related trials is pointing to seditious conspiracy as a charge Mr. Trump likely will face.
Mr. Trump said he was informed of being the target late on July 16 through a letter from the office of Jack Smith, a special counsel appointed by Attorney General Merrick Garland to investigate Mr. Trump’s involvement in the January 6 incident as well as his retention of documents from his time in the White House.
“This witch hunt is all about election interference and a complete and total political weaponization of law enforcement!” Mr. Trump commented in a July 18 post on Truth Social, his social media platform.
‘Tactical Move’
Prosecutors should first ask for a voluntary appearance before subpoenaing the target of a criminal investigation, according to the Department of Justice’s (DOJ) Justice Manual.Also, lawyers usually discourage their clients from going before a grand jury if they are the target of the investigation—it can be avoided by invoking the right against self-incrimination under the Fifth Amendment, says Marc Ruskin, a former FBI agent and assistant U.S. attorney.
However, that may be Mr. Smith’s goal, according to Mr. Ruskin.
He noted that Mr. Trump is already facing indictments in New York and Florida and pleading the Fifth in Washington gives another talking point to his opponents.
“It could be a tactical and procedural move just to make him look bad,” he said.
“You have Trump, a former president who is running to be president again, pleading the Fifth. I guess from their point of view, it’s going to help make him less attractive as a candidate.”
Mr. Trump indicated he believes charges against himself are imminent, saying that being told to report to the grand jury, “almost always means an Arrest and Indictment.”
Some commentators have long predicted Mr. Trump will face charges in the probe, including Julie Kelly, an independent journalist who had closely followed the trials of Jan. 6 participants.
“Only question now is what charges Smith will bring (strong possibility he’ll seek indictment on seditious conspiracy) and who is charged with him. (Any conspiracy charge requires at least one conspirator).”
In April, she highlighted several members of the pro-Trump Proud Boys group who were convicted of seditious conspiracy. Ms. Kelly believes the DOJ approached the Proud Boys trial in a way that seemed to lay the groundwork for bringing the same charge against Mr. Trump.
During the closing arguments, it seemed to her that prosecutors tried to tie Proud Boys to Mr. Trump, particularly regarding a comment by Mr. Trump during a 2020 presidential debate that the Proud Boys should “stand down and stand by.”
She pointed to a comment by one of the prosecutors that “defendants saw themselves as Donald Trump’s army, fighting to keep their preferred leader in power no matter what.”
Stretchable Statute
Seditious conspiracy is a broad statute that includes not just attempts to forcibly overthrow the government, but also much less consequential behavior, such as any agreement “by force to prevent, hinder, or delay the execution of any law of the United States.”“The allegation would be that Trump conspired with others, including perhaps those already convicted, to ‘by force’ either hinder, delay, or prevent the certification of the Electoral College vote,” Ms. Kelly said.
“Astonishingly, that’s the vague burden of proof in several seditious conspiracy cases.”
Mr. Smith may not argue that Mr. Trump actually conspired with the Proud Boys, but rather that his comment to “stand down and stand by” was a part of the conspiracy.
The co-conspirators could be people from Mr. Trump’s orbit. It isn’t known if anyone else received a target letter.
General conspiracy charges don’t require any nefarious act to actually be committed. It suffices if two people agree to commit the crime and conduct an “overt act” to carry out the agreement. Such acts could be innocuous by themselves. If two people agree, for example, to kidnap somebody and one of them then buys a pack of zip ties, the government could argue that the fasteners were to be used to tie the hands of the victim and substantiate the charge, even if the plot never progressed.
The Proud Boys trial demonstrated how far the law can be stretched, Ms. Kelly suggested.
“Individuals who brought no weapons and committed no violence nonetheless have been convicted of seditious conspiracy despite a dearth of evidence—nothing more than texts and plan to travel to Washington, D.C.,” she said.
The conspiratorial agreement doesn’t need to be explicit. A nod would suffice, prosecutors have argued, according to Ms. Kelly.
Circumstantial Case Study
In the trial of Bijan Rafiekian, former business partner of retired Lt. Gen. Michael Flynn, prosecutors told the jury that Mr. Rafiekian conspired to act as an unregistered agent of Turkey even though there was no direct evidence of such an agreement and the Flynn–Rafiekian outfit did register as a foreign lobbyist when prompted by the DOJ.Mr. Rafiekian’s client, Turkish businessman Ekim Alptekin, claimed the project initially was supposed to be run by the Turkish government, but that it eventually dropped it and he hired Flynn’s firm for a separate, but very similar project that he ran himself on behalf of Turkish businesses.
The “overt act” seemed a mere formality then.
“An overt act can be anything completely legal, like sending an e-mail, like the one that the defendant sent to his team saying, hey, we’ve been hired by a bunch of Turkish businessmen,” one of the prosecutors said in his rebuttal of the defense’s closing argument.
The jury convicted Mr. Rafiekian, but the judge tossed the verdict, saying prosecutors impermissibly stretched the law.
