Emergency Podcast: Trump Charged In Jan. 6 Investigation 34:02

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Hello and welcome to this emergency edition of the FiveThirtyEight Politics Podcast. I'm Galen Druk. Did former President Donald Trump conspire to defraud the United States, conspire to obstruct an official proceeding and actually obstruct that proceeding, and conspire to willfully deprive American citizens of their right to vote?

Those will now be questions for a federal jury after a grand jury indicted the former president on four felony charges on Tuesday.

The Department of Justice made its 45-page charging document public alongside the announcement, and it's available for anyone to read. It details Trump's attempts to stay in office after losing the 2020 election, from pressuring state lawmakers and elections officials to assembling a fake slate of electors to the events of January 6th.

As severe and unprecedented as Trump's actions were in the aftermath of the 2020 election, even legal scholars who support the theories behind these charges acknowledge that this may be a challenging case to prove beyond a reasonable doubt in front of a jury.

And so begins the highest stakes case facing the former president and current frontrunner for the 2024 GOP nomination. And here with me to discuss it is senior reporter Amelia Thompson-DeVoe. Welcome to the podcast. Hi, Galen. Also here with us is senior elections analyst Nathaniel Rakich. Welcome to the pod. Hey, Galen.

So I will say we probably would have recorded an emergency podcast last night after the announcement was made, but it was my grandmother's 90th birthday and she had to come first. Also, if you've been listening to this podcast for a while, you may know that my grandmother actually listens to every episode of this podcast and has even attended virtually our live shows in the past. So happy birthday, grandma. I love you. Happy birthday, grandma. Happy birthday, grandma of Galen.

And now aggressive pivot back to the third indictment of former President Trump. So, Amelia, can we just begin by discussing the four charges in plain language? They always sound pretty extreme, but also not exactly clear when you cite the actual statutes that the charges are based on. So basically, what are they getting at here?

Yeah, so you broke down the sort of top-level charges, but let's dig into what's actually happening here a little bit more. So the obstruction charge is actually two of the counts because Trump is charged with both actually obstructing an official proceeding and conspiring to obstruct an official proceeding. And the official proceeding in this case is the January 6th session of Congress, which

where electoral votes were counted and where Biden was ultimately certified as the official winner. And this charge has been one that's been brought against many of the people who participated in the insurrection at the Capitol on January 6th.

And a good number of those people have been convicted at trial or they've pleaded guilty to the obstruction charge. So this one was not a huge surprise, pretty widely expected, given that the January 6th events were clearly at the heart of what Smith was looking into. Then we get into the charges that are a little bit more abstract. We have conspiracy to defraud the U.S.,

And this is basically alleging that Trump used fraud and dishonesty to keep the legitimate election results from being counted and certified. And so a lot of the indictment details Trump's behavior and the behavior of his co-conspirators in the lead up to

to the actual January 6th proceeding in Congress, where they were laying the groundwork in a number of different ways to overturn the legitimate result of the election. So that's a large portion of the indictment. And that charge gets at that a little bit more. You know, I mean, it's interesting because

One of the things that's at issue here is the question of whether Trump has a First Amendment right to say that he won the election, even if he did not. But the indictment is arguing basically that

Trump used the levers of the federal government. He put pressure on state legislators. He convened fake slates of electors and that all of this was leading up to an attempt to keep votes from being counted and from being certified and that Trump was

knew that he was not telling the truth. A lot of this indictment is just like listing all the people who told Trump that he had lost the election. So one of the things that Smith and his team is clearly trying to do here is to remove plausible deniability that Trump

really believed that he had won the election because so many different people in his orbit were telling him he had lost. Yeah, and the last charge we talked about a little bit on a previous podcast, but it's to willfully deprive American citizens of their right to vote.

Does that get at one action in particular, or does that sort of cover all of the behavior surrounding the 2020 election and lead up to January 6th and January 6th itself? Yeah, so this is the charge that was a little bit unexpected, and we did get a hint about it based on the target letter that Trump received that this might be one of the charges. The piece of the law that's being used here

is from a Reconstruction-era set of laws that were passed in response to the KKK. And they've been used to go after people who are violating rights in a number of different contexts, including election fraud cases. And so this covers the gambit of what Trump was doing. And importantly, the fraud does not

have to be successful for this charge to still work. It's conspiring to violate people's rights is enough to violate this law. You don't actually have to successfully overturn the election. We're going to get into some of the challenges involved in this case and Trump's defenses, but let's speed way ahead for a moment.

What would an actual conviction bring? What's the severity of these charges, essentially? So the obstruction charge, for example, carries a prison time of up to 20 years.

I would not read heavily into the maximum sentences because I think it's very unlikely that Trump would get the maximum, even if he were convicted across the board. But I do think looking at the maximums is telling just insofar as these are serious crimes that do carry serious jail time.

Of course, if Trump were convicted, he would appeal. So it wouldn't be the end of the story. But, you know, I mean, it would be a big deal if Trump were convicted on any of these counts. Yeah, I think a couple of points there. First of all, yeah, like, you know, in terms of the legal consequences for Trump, I just want to reiterate what Amelia said, which is that even if he is convicted, say, in summer of 2024, he would appeal. So it's not like he's going to be, you know, quote unquote, running for president, uh,

or from jail the way that a lot of people have kind of speculated about. He would either win the election, in which case, well, you know, that would be its own thing, or he would lose and then kind of face whatever consequences come out of the appeal. And then there are the political consequences, of course, you know, that being my bag as an elections analyst. So some interesting numbers that I found when writing about this were from YouGov Yahoo News in a July poll that they had.

So 71% of registered voters thought that conspiring to obstruct the results or to overturn the results of a presidential election was a serious crime. And 62% of voters thought that Trump should not be allowed to serve as president again if he's convicted of a serious crime. So those two numbers kind of in combination, I think, suggest that this case has a lot of political risk for him if he is convicted. Obviously, I think in the thick of a general election campaign, given how polarized things are,

You know, a lot of people or some number of people probably who are saying, yes, this would be disqualifying, probably would not act accordingly and would still pull the lever for him in November. But I think it does illustrate the just just kind of the risk, especially in a general election, that a conviction in particular on this case in this case would mean for Trump.

Yeah, I mean, it's important, though, to say 70-some percent of Americans say that they think conspiring to overturn the results of an election is a serious crime. But then you have to ask the question, do they think that in this specific case, Trump did, in fact, conspire to overturn the results of the election? And that maybe gets at Trump's defense, which I think is three-pronged. First is in the court of public opinion basically saying this is a witch hunt, and that may be—

his most important defense when it comes to the actual election, but then his two other defenses that we've seen previewed so far, there may be others as well as one free speech, as you mentioned, Amelia, the first amendment, you can say that the election was stolen, um,

And in fact, you know, Jack Smith acknowledges as much in the charging document. It reads, quote, the defendant has a right like every American to speak publicly about the election and even to claim falsely that there had been outcome determinative fraud during the election and that he had won.

So they're sort of preempting that defense right there to some extent. The other defense is his intent. What did he believe about the election himself? And did he actually knowingly try to commit a crime? Because if he so dearly believed that he had in fact won the election, then maybe pursuing these avenues is not actually a crime. You know, that's for the jurors, I think, to decide and for the prosecutors to prove or not.

On the legal front, Amelia, how big of a challenge will these two defenses pose to prosecutors? I mean, I think they'll be a challenge. You know, this is a case that clearly Smith and his team have been working very hard on. And the narrative that they present in the indictment is compelling. But they're going to have to present evidence showing that Trump—

really understood that he was lying and misleading the American people when he was engaging in these acts. And that's hard to prove. It's hard to prove intent.

It's hard to prove exactly what was going on in someone's mind. So that's going to be one of the key things that happens at trial. And I think in some ways, that's why trying to figure out how much each individual indictment will hurt Trump is less important than what will actually happen at the trial, because these are going to be

massively covered events, going to be like wall-to-wall coverage of all of the trials. And Smith and his team are going to be making this case to the jurors, but secondarily, the American people will also hear the case. And that's what I think is really what really matters, where Trump's defense attorneys are able to

come in and say, no, look, here's our argument for why what Trump did was not actually illegal, because he really believed that this was true in the face of overwhelming impotence to the contrary. I mean, I think what you're saying there is really important. We have been tracking on this podcast, you know, has this indictment hurt Trump? Has that indictment hurt Trump? And it's a question worth asking because this is high stakes stuff.

But when you think about the, you know, American justice system overall, it's not an indictment that answers the question. The indictment is the question, right? And so in a country where you're innocent until proven guilty, it should be the actual trials and the verdicts and things like that, that shape public opinion, I would assume more than an actual indictment, right? Jack Smith goes out of his way to say, we must presume that the charged individual in this case is innocent. And

And so it is important to remember in all of this, as we sort of look at approval ratings tick up or tick down or standing in the Republican primary go up or down, that actually what's really at stake here is whether these charges can be proved beyond a reasonable doubt in court. And that's going to come, as you've written about, in 2024 as all of this is playing out. But Nathaniel, of course, you have been following public opinion, so weigh in here.

Yeah, so I completely agree. Like, this is not over by a long shot. As you alluded to, Galen, Amelia had a good article on FiveThirtyEight this morning about kind of the logistical challenges that going to trial will mean for Trump's campaign. You know, like generally criminal defendants are expected to be there for every day of their trial. That could take weeks and that those are weeks that he won't be able to spend on the campaign trail, really. You know, we don't know the timing of of this particular trial.

but summer 2024 seems likely. What if it happens to coincide with a Republican national convention? That's a split screen that, you know, Republicans do not want. Like, that would be extremely awkward for them. That could step on a convention bounce. You know, it could logistically be difficult for Trump to accept the nomination in person. Yeah, it's very complicated. I mean...

That obviously sounds like a big deal, but you'd have to think that a federal judge wouldn't actually schedule the trial to coincide with the Republican National Convention if Trump ends up indeed being the Republican nominee, which maybe, Amelia, here leads us into the topic of who is this judge and this jurisdiction and how is it different from the other situations that Trump finds difficult.

himself in. Federal judges are assigned to cases randomly. And the judge who's been assigned to this particular case, which was filed in the District of the District of Columbia, is Tanya Chutkan, who is an Obama appointee. And she's overseen a number of different January 6th related cases and has been quite

outspoken in those. Particularly noteworthy, in late 2021, she rejected an attempt by Trump to keep the House committee that was investigating the events of January 6th from accessing a large number of White House records. And she wrote in that ruling, quote, presidents are not kings and plaintiff is not president. Um,

So who can say how she's going to approach this particular case? But we definitely know that this is a venue generally that is going to be less friendly to Trump than the other federal case, which was filed in Florida. You know, in some ways, the prosecutors were kind of taking a risk there.

by filing that case in a much more conservative part of the country where, of course, a Trump appointee is overseeing the case. Here, they are, you know, I mean, to the extent that you're ever on friendly or less friendly grounds, obviously, when you go into a courtroom in any part of the country, you're supposed to be treated the same. But in terms of something like jury selection,

It's going to be a much more Trump skeptical pool of jurors that will be drawn in D.C. versus in Florida. And of course, the way that the judge handles the case will be critical because the judge at every step is making incredibly important decisions about how the case moves forward, what kinds of evidence are allowed to be presented that can really affect

the kind of case that's presented and how the prosecution and the defense are permitted to make their case. And the judge may even end up getting to decide whether or not this case is reviewed before the election, right?

Yeah, I mean, it's the judge who's setting the timeline. You know, we know that the Florida case has been scheduled for May. And I think that's the other complicating factor here when we're thinking about timing. A federal judge may not want to schedule over something as major as the RNC, but we're talking about potentially a several week long trial here. And it's just not that much time. If you want this to happen before the 2024 election...

If you're talking about interfering or sort of swaying the outcome of the 2024 election, you don't want to do it in the fall. So we're really talking about the summer. Who knows how long the May trial is going to go? We may get another indictment out of Fulton County, Georgia, which would mean another trial. So we're just not talking about a huge window of time here. And I think that could be somewhat limiting from a scheduling perspective.

Yeah. So just to game that out, right. So like that previous trial is in May. The RNC is mid-July, July 15th to 18th. Yeah. Maybe there just won't be time to do two trials before then. You know, like, I don't know how long that the federal judge would want to, or I guess they're both federal, but how long they'd want to kind of allot for the May trial.

But like, I guess you could do something in mid-June and try to squeeze it in before the convention. But then what if it goes long and then it does run into the convention? But then what if you wait till after the convention? And then at that point, if you're starting in August, like that is starting to eat into the actual general election campaign. And you're going to, and it would interfere with the Democratic convention, which they might also want to avoid. I don't know. Yeah, I think it's going to be really tough. And as you mentioned, the Georgia trial, like when is that going to go? Yeah.

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seem likely to be scheduled in 2024. Trump himself, I'm sure other Republicans as well, thinking, you know, this is he's claiming this is election interference, you know, tying up a major party nominee and all of this legal battling. As you've written about, Amelia, this is expensive. It requires a lot of lawyers. It requires a lot of the defendant's time either appearing in court or working with his lawyers to determine what his defense is going to be.

So I'm curious, you know, obviously Republicans are not happy about this. What are his rivals saying? It is pretty much the same old, same old, right? I mean, Nathaniel, have you seen anything that's substantively different than what we've seen from the first two indictments where basically we have like the

Yeah, I think generally it's been the same. You know, like you can say that there's been like incremental differences, which like maybe you're significant, maybe aren't significant. So like, you know, I think it's been the same.

Like DeSantis did the whole I haven't read the indictment thing. So like that kind of left the door open to, you know, you know, basically like sidestepping the question. Mike Pence was kind of interesting. Obviously, he's kind of a central figure in the indictment itself, you know, having been pressured by Trump to defend.

overturn the election, except not really because his role was purely ceremonial and he wouldn't have been able to do it anyway. But he, like, for example, in the last federal indictment, he was a little wishy-washy. He said that the indictment would be extremely divisive, but he also said, no one's above the law, quote, no one's above the law. If the Department of Justice chooses to move forward with an indictment, I would hope that it would meet the very high threshold for the unprecedented action of a federal indictment against the former president. This time around, though, he, you know, he was much more forceful about, you know,

Like, you know, the president was in the wrong with regard to this. And obviously Pence feels that he was in the right. And then, yeah, the anti-Trump candidates, I think Will Hurd probably had the most forceful statement. He wasn't in the race, I believe, when the first federal indictment, second overall indictment came down. But he really released a statement that blasted Trump. But he's part of this anti-Trump wing. Asa Hutchinson also had he's Asa Hutchinson has basically had the same reaction to all three indictments, which is that Trump should get out of the race.

To add some quotes to that rundown, former Vice President Mike Pence's quote was, today's indictment serves as an important reminder. Anyone who puts himself over the Constitution should never be president of the United States. And Will Hurd has been...

delivering this message, even in Iowa and got booed off the stage last weekend, delivering a very similar message. He said, let me be crystal clear. Trump's presidential bid is driven by an attempt to stay out of prison and scam his supporters into footing his legal bills. Furthermore, his denial of the 2020 election results and actions on January 6th show he is unfit for office. Again, I'll say Chris Christie had a similar message. We haven't heard from Nikki Haley yet, who came out

in the immediate aftermath of January 6th, against the former president saying we got to move on, and then has been wishy-washy since then on what she actually believes and has even suggested that she may consider pardoning the former president if she were to become president herself, which is an unlikely scenario. And Vivek Ramaswamy, probably of everyone being the most adamantly supportive of the former president, saying that he would pardon him

Before we wrap up here, we're going to keep this short. We did get some new polling from The New York Times that we discussed on Monday's podcast. It's trickling out throughout the week. We're getting polling on former President Trump's, you know, standing in a head to head versus Biden. Yeah.

the GOP primary in general, one of the questions that the Times and Siena College asked was voters' attitudes about whether or not Trump broke the law or committed serious crimes while in office in general. And what we see is that there is actually the most movement

perhaps surprisingly, amongst Republicans. So back in July of 2022, when the House was holding its public hearings as part of the January 6th committee's investigation, 80% of Republicans said that Trump has not committed serious crimes.

Now, in July of 2023, it's 74 percent of Republicans say that he has not committed serious crimes. So it seems like even, you know, we talked about how it's the trial that really matters here, but these indictments might be swaying some Republicans. Is there evidence of that elsewhere, Nathaniel, in other polling? I know you you looked at more polling than just what you cited before. Have you seen that anywhere else?

Well, I think, first of all, Galen, I think it's worth noting that the whole classified documents case came out during that time after July 2022. And I think there is a way in which you could imagine that that would appeal to or kind of like...

sway a certain type of Republican voter that other things wouldn't, like national security being at stake with the classified documents and stuff, et cetera. That said, the YouGov Yahoo News poll that I mentioned earlier, in the crosstabs, there are a significant chunk of Republicans who believe that these things are serious crimes. And this poll

poll didn't specifically ask about Trump and whether he had committed them. But I also think that these things have been in the news enough that people are kind of aware of it. So 45% of Republicans thought that attempting to obstruct the certification of a presidential election was a serious crime. 36% thinks

serious crime to take highly classified documents from the White House. So, you know, there is a contingent of Republicans who are probably concerned by this. I just like it's a question, obviously, of whether it will affect their vote. Like you see, you know, like they're kind of consistently these crosstabs and and, you know, you hear Republican voters be interviewed where they say, you know, yeah, he you know, he committed crimes, but like he's better than Joe Biden. He you know, he fought for me. And so, you know, that's the important thing. Things like that.

Yeah, it's interesting. You mentioned perhaps the big difference between last summer and this

this summer is that this classified documents case came out. And in AP polling, it actually suggests that voters may take that classified document case as being the most serious as regards Trump. So when asked, do you think that Trump acted illegally in this case? Hush money payments to alleged mistress, 35% of Americans said they thought Trump acted illegally. That's of course the Manhattan case.

Events at the Capitol on January 6th, that was 45% of Americans. And then classified documents at Mar-a-Lago, 53% of Americans. Now, that's not to say that Americans don't take the events of January 6th seriously when we look at other polling on

views of the events of January 6th. It's an overwhelming majority of Americans who view those events negatively. This is specifically asking, do you think that what Trump did in regards to that event was illegal? And, you know, I'm curious...

What voters are responding here may be in line with what I've heard from legal scholars as well, which is that the classified documents case might be the most cut and dry case against the former president, that this January 6th case, the overturning the election case, while extremely serious, may be a bit more difficult to prove criminal liability, and that the hush money payments case is basically being charged on a fully novel legal theory, and we

you know, we don't know what's going to happen there yet. But Amelia, is that pretty much in line with your assessment of how legal scholars are thinking about these three cases so far?

I think so. I mean, the classified documents indictment was, I mean, it was like the one that just came down yesterday, was incredibly vivid, but it had pictures, like it has text messages. There was just a superseding indictment about allegedly trying to delete security footage. It just seems like it's easy for people to understand things.

why it is illegal for Trump to maintain a hold, to maintain in his possession classified documents after he leaves the White House. And I think it's easy for people to understand why it would be illegal for Trump to obstruct efforts to get them back. And

you know, like there will be argument over the facts, but the facts are very compelling as they're presented in that indictment. So I think there is potentially less room for sort of complex maneuvering like, oh, you know, Trump really believed that he had won the election and these are his sincere thoughts. And, you know, it's just with this one, it's like they seem to have evidence that he's

has the documents in his bathroom. It's pretty straightforward, or at least it's more straightforward, I think, for people to wrap their heads around. Again, though, this is why the trial is going to be important.

Because the indictments are just the prosecution starting to present their case and Trump's lawyers will have their opportunity to defend him. And we don't know yet what they're going to say. Yeah, that's, of course, important. And I've also seen arguments that, you know, Trump's state of mind actually doesn't matter in this case, that even if he thought the election was stolen, that he may have still acted differently.

Um, so we're going to see how this all plays out. Any closing thoughts? This is now our third rodeo and we're expecting a fourth rodeo before the end of the month, I believe. One question that I have been thinking about, and I'm curious what you, if you guys have any thoughts on it is kind of Galen, you mentioned the witch hunt argument, which of these like messengers is kind of going to be the most, um,

credible, right, for the American public specifically, right? Like, on one hand, right, you know, this is the, you know, the Biden-led Justice Department that is, you know, bringing these charges and the classified documents one. But on the other hand, it's a special counsel, right? So, you know, there is some insulation there. Meanwhile, Alvin Bragg and Fannie Willis are both literally elected Democrats. So I feel like those might be easier to spin as partisan, like,

Is there do do we see voters drawing distinction and feeling like, you know, yeah, Jack Smith is a neutral actor in this or do you think it's all going to be, you know, partisan? You know, it's all it's all a partisan witch hunt against Trump.

I mean, isn't this quite the question for our times in a world where you're getting emotional, enthusiastic appeals from whatever sort of people you trust politically? Can anybody be viewed as a neutral arbiter? And so, of course, you know, Democrats are going to be inclined to believe Fannie Willis and Alvin Bragg and Republicans are going to be inclined to believe Donald Trump.

I wonder in all of this, the extent to which folks like Mike Pence make a difference, right? He's still viewed favorably. He's still above water amongst Republicans. Now, the stances that he takes in the coming, you know, that he took yesterday and that he takes in the coming months may force him underwater. But.

Republicans are at least hearing from one, a couple relatively credible people in their world that what happened on January 6th is wrong and Trump is liable. So maybe that makes some difference in all of this. I really don't know what the credibility levels are for Jack Smith. Do we have polling on it? Let me look right now. I haven't seen any, but yeah, that's something I would, I'd be curious about. Yeah.

Yeah, that would be interesting because, I mean, even Robert Mueller, the other special counsel looking into allegations that had to do with Trump, was not perceived as credible by a significant chunk of Americans, despite the fact that he was a very much a bipartisan pick. But Jack Smith, on the other hand, you know,

This is another career prosecutor. He's not someone who's been out in the public eye. And I think he is taking a lot of care to really just present this as a legal case. So I think in that sense...

I would say probably Americans are more likely to take the federal cases more seriously, also because I think there's just a general impulse to take federal charges with more gravity. But again, this is why the trials are going to matter so much and who testifies and what kind of evidence is presented, because

you know, this is going to be a large chunk of our 2024. And there will be a lot of opportunities for people to spin what's happening in the trials in both directions. You mean to say that we don't just have to cover a presidential election, we also have to cover potentially four trials of a former president and potential Republican nominee? Is that what you're saying, Amelia? Yeah.

I don't want to say the words out loud because it's too upsetting, but yes, you are correct. All right. Well, we're going to leave things there. Thank you, Amelia and Nathaniel. Thanks, Galen. Thanks, Galen. My name is Galen Druk. Tony Chow is in the control room and on video editing. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet at us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple Podcast Store or tell someone about us. Thanks for listening, and we'll see you soon. Bye.