Election conspiracy charges against former US president Donald Trump explained

Incitment means Trump is facing 78 criminal charges across three cases

For all that Donald Trump did not have his legal woes to seek before this week, the indictment which accused him of illegally conspiring to overturn his election loss to President Joe Biden represents the most serious case against him to date.

Over the course of a 45 page document, prosecutors allege that Trump orchestrated a sweeping conspiracy designed to retain his grip on power by subverting the 2020 election and discounting legitimate votes. While the incident goes into significant detail about how those actions played out in the likes of Georgia and Pennsylvania, the key message is laid out with economy and purpose in its second paragraph.

“Despite having lost, the defendant was determined to remain in power,” it states. “So for more than two months following election day, the defendant spread lies … that he had actually won. These claims were false, and the defendant knew that they were false.”

Trump has denied wrongdoing, and his campaign compared the “persecution” of the 77 year-old to Nazi Germany and “other authoritarian, dictatorial regimes.” But together with the other cases against him - in June, a grand jury indicted Trump on charges related to his handling of classified documents, and in March, a Manhattan grand jury voted to indict him over hush money payments to adult film star Stormy Daniels - it means he now faces 78 criminal charges across three different cases.

Yet he remains intent on becoming only the second US president to serve non-consecutive terms, and the mounting investigations against him have done little to impact his status as the frontrunner for the Republican nomination. Could that change? Much depends on how prosecutors take forward the four new criminal charges against him. Here are those charges:

Conspiracy to defraud the United States

The headline charge in the indictment is indicative of the sweeping case brought against Trump by prosecutors. The indictment does not specify one incident, but looks at the actions of the former US president over a two month period spanning the 2020 election to the day he departed the White House.

Former US Donald Trump has been charged with plotting to overturn his defeat to Joe Biden in the 2020 presidential election. Picture: Jeff Swensen/Getty

In short, the charge relates to what special counsel Jack Smith has described as Trump's repeated and widespread efforts to spread false claims about the election result while knowing they were not true, and the alleged attempts to illegally discount legitimate votes with the goal of overturning the outcome. The charge, which was recommended by the House select committee investigating the US Capitol attack, is punishable by up to five years imprisonment.

There is no need for the alleged conspiracy to have been successful in order to prove criminality, and alleged perpetrators can be held responsible if they join the conspiracy at any stage. The indictment lists six unnamed co-conspirators: four lawyers, a US Justice Department official, and a political consultant. The prosecution claims that along with Trump, they exerted pressure on vice president Mike Pence and officials in those US states where the voting results had been close to ignore the popular vote and disenfranchise millions of voters.

Conspiracy against rights

The charge of conspiracy to violate civil rights, punishable by up to five years in prison, stems from section 241 of title 18 of the US code, a criminal statute that dates back to the Reconstruction era. Originally adopted as part of the Enforcement Act of 1870, it was the first in a series of legislative measures which came to be known as the Ku Klux Klan Acts.

The legislation, which criminalises any effort to “injure, oppress, threaten, or intimidate” people to deny them their constitutional or federal rights, allowed prosecutors to take action against those white Americans in the south, many of whom were klan members, for their efforts to prevent African Americans from voting.

Since then, however, use of the statute, which carried a sentence of up to 10 years in prison, has expanded, covering an array of offences such as voter intimation, the destruction of ballots, and hate crimes. It was central to a 1967 trial of more than a dozen Ku Klux Klan members who conspired to murder three civil rights workers, a case made famous in the movie, Mississippi Burning.

The indictment against Trump draws on the law’s broad provisions, framing it as a “conspiracy against the right to vote and to have one’s vote counted.” The document accuses Trump and co-conspirators of organising fraudulent slates of electors in seven states, all of which he lost, to submit their votes to be counted and certified as official.

Conspiracy to obstruct an official proceeding / Obstruction of and attempt to obstruct an official proceeding

The two final charges against Trump are interlinked, and may be familiar to those who have closely followed the fallout from the US Capitol attack. Hundreds of rioters who took part in that assault on the seat of American democracy have been charged under the statute under section 1512 of title 18 of the US code.

Any conviction under the statute is punishable by up to 20 years in prison. The law dates back to 2002, and was drafted by the US Congress in the aftermath of the Enron scandal so as to address the conduct of its external auditor, Arthur Andersen. While the majority of the legislation is concerned with evidence tampering, it also covers any efforts to “otherwise” corruptly obstruct an “official proceeding.”

The US Justice Department clearly believes the statute should apply in Trump’s case, with the proceeding in question the congressional confirmation hearing which was violently disrupted on 6 January 2021. Significantly, in April this year, a US federal appeal court upheld the viability of applying the charge in relation to the Capitol attack, but Trump’s defence team may fight the decision to include it in the indictment against their client, given he did not personally participate in the riots.