August 2, 2023 - 8:00am

Donald Trump has been served with another wave of indictments, deepening the legal maelstrom surrounding his efforts to overturn the 2020 election results. The charges, filed by special counsel Jack Smith, accuse the former president of three conspiracy felonies and a felony count of obstructing an official proceeding. 

These new charges add to the long list already arrayed against Trump in the ongoing federal case concerning the alleged mismanagement of classified documents following his presidency. The federal indictment count there now stands at 40, bolstered by 37 initial charges, including 31 under the Espionage Act, plus a trio added on 27th July. Additionally, Trump faces 34 felony charges for alleged falsification of business records in what many legal experts consider a fairly weak case filed by the Manhattan District Attorney’s office earlier this year. On top of all that, an investigation in Georgia into Trump’s alleged efforts to overturn Joe Biden’s certified victory and award the state’s electoral college votes to himself is ongoing.

The specific federal statutes under which Trump was indicted yesterday — bringing his total number of felony charges to 78 — have stirred debates among both political partisans and legal scholars, particularly regarding the “obstructing an official proceeding” charge. The three conspiracy laws that serve as the basis for the four most recent felony charges encompass a wide range of behaviours. The first statute, “conspiracy against the United States” (18 U.S.C. § 371), is used for broad-based charges which have been leveraged against a diverse range of entities, from terrorist group al-Qaeda to high-ranking executives implicated in the Volkswagen AG emissions scandal.

The second statute, “conspiracy against rights” (18 U.S.C. § 241), has a storied history. It was initially instituted in the aftermath of the American Civil War to safeguard the constitutional rights of newly emancipated African-Americans — and then again during the 1960s, in Supreme Court cases like United States v. Guest (1966). More recently, it served as the grounds for the conviction of “based poster” Douglas Mackey, better known to fans by his pseudonym “Ricky Vaughn”. Mackey was convicted for social media posts that misleadingly suggested supporters of Hillary Clinton could cast their votes via text or social media, which the federal government characterised as interference with the constitutionally-protected right to vote.

“Corruptly obstructing, influencing, or impeding an official proceeding” (18 U.S.C. § 1512(c)(2)), was introduced in 2002, and has expanded well beyond its original scope, such as during the prosecution of 290 individuals associated with the 2021 US Capitol riots (over 70 have been convicted). Prior to that, it was used in 2019 to convict Trump associate Roger Stone during the Mueller Special Counsel investigation for lying to the US House Committee on Intelligence (Trump would pardon Stone, as well as advisor Paul Manafort, who had been convicted under 18 U.S.C. § 371).

The use of this statute to prosecute Capitol protestors has been met with pushback from some legal experts, who argue that the law should only be applicable to proceedings where evidence is being presented, and not for administrative or ceremonial events such as the Electoral College vote count. Despite these concerns, several federal judges have upheld its use, ruling that it has been invoked appropriately and is not unconstitutionally vague.

As Trump continues his presidential campaign, he faces the daunting task of contesting these charges. While the New York case against him isn’t strong, federal prosecutions are more challenging: in 2022, only 0.4% of defendants in federal criminal cases were acquitted (1.9% were convicted) — and the vast majority never made it to trial. 

Though the situation may seem dire to some outside observers, from a political perspective this could all still work in Trump’s favour. The publicity generated from so many felony charges, plus any additional ones issued from the Georgia investigation, provides abundant opportunity for media engagement and denouncing the ongoing “witch hunt” — the sheer volume can be presented as not so much prosecution as persecution. If he is successful at the ballot box, the presidential pardon power could serve as his “get out of jail free” card should he be convicted before the election, and swiftly quell any future legal challenges. If he fails to win, however, Trump’s circumstances may take a turn for the worse. 

Oliver Bateman is a historian and journalist based in Pittsburgh. He blogs, vlogs, and podcasts at his Substack, Oliver Bateman Does the Work