Trump Could Be Charged With These Crimes In DOJ Jan. 6 Probe—And They All Could Include Prison Time

Topline

Former President Donald Trump has been identified as a target of the Justice Department’s investigation into January 6 and the aftermath of the 2020 election, he said Tuesday, suggesting a third indictment against the ex-president may be imminent, which could bring federal charges for such crimes as conspiracy, obstruction and deprivation of rights and potential prison sentences if he’s convicted.

Former President Donald Trump speaks during a rally on July 7 in Council Bluffs, Iowa.

Key Facts

ABC News reported based on anonymous sources that the target letter Trump received listed statutes Trump may have violated, including conspiracy to commit offense or defraud the United States, witness tampering and deprivation of rights under color of law; Bloomberg reported the letter suggests Trump could be charged with obstructing an official proceeding.

Conspiracy to Commit Offense or Defraud: 18 U.S. Code § 371 makes it a crime for two or more people to “conspire either to commit any offense against the United States, or to defraud the United States” or any federal agency, and for one of them to perform some action that would affect the object of the conspiracy, which carries a fine or maximum prison sentence of five years if convicted.

According to legal experts writing for Just Security, Trump and his allies could face a conspiracy charge based on the “fake elector” scheme after the 2020 election, in which Republicans in battleground states submitted false slates of electors to Congress claiming Trump had won their states.

Witness Tampering: 18 U.S. Code § 1512, the federal statute on witness tampering, makes it a crime to use threats, intimidation or “misleading conduct” in order to influence or withhold someone’s testimony in a legal proceeding or destroy materials used in a legal proceeding, which is punishable by a fine or up to 20 years in prison.

Obstruction of An Official Proceeding: If Trump is charged under the witness tampering law, experts at Just Security note it’s more likely he’d be indicted based on a different section of that statute that criminalizes “obstruct[ing]

, influenc[ing], or imped[ing] any official proceeding” based on his and his allies’ efforts to block Congress from certifying the election on January 6, which is also punishable by a fine or up to 20 years in prison.

Deprivation of Rights Under Color of Law: 18 U.S. Code § 242 makes it a crime for people acting under color of the law—meaning any public officials or law enforcement acting under their legal authority—to “to willfully deprive a person of a right or privilege” that’s protected under the Constitution or federal law, which is punishable by a fine or up to one year in prison, assuming there’s no bodily injury to the person being deprived of their rights.

What To Watch For

Trump’s receipt of a target letter in the DOJ’s probe makes it extremely likely he’ll be indicted, though it’s still not confirmed that he will be. While the exact timing of his potential indictment remains unclear—though it’s expected sooner rather than later—the ex-president said the letter he received Sunday night gave him four days to respond to the grand jury, meaning an indictment likely wouldn’t come before the end of the week. If indicted, this would mark Trump’s third indictment since March and second federal indictment, after the former president has already been charged in Manhattan based on hush money payments made during his 2016 campaign, and in federal court based on the DOJ’s separate investigation into White House documents he brought back with him to Mar-A-Lago.

Chief Critic

Trump has strongly opposed the DOJ’s investigation into January 6 and the aftermath of the 2020 election, and has denied any wrongdoing. In his statement announcing his target letter, Trump accused the DOJ of being biased against him because he’s President Joe Biden’s “number one political opponent,” calling the likely charges a “WITCH HUNT” and a “COMPLETE AND TOTAL POLITICAL WEAPONIZATION OF LAW ENFORCEMENT.”

What We Don’t Know

If anyone else will be charged in the DOJ’s probe. There are so far no reports of other key Trump allies receiving target letters, and representatives for ex-Trump attorneys Rudy Giuliani and John Eastman, who aided in his attempts to overturn the election, said Tuesday neither of them had received a letter or expected to be charged.

Surprising Fact

One federal statute that Trump does not appear to face charges for is 18 U.S.C. § 2383, which makes it a crime to incite an insurrection or “[give] aid and comfort” to insurrectionists. Legal experts speculated he could face a charge under that statute if the DOJ found he incited the January 6 attack on the Capitol building. If Trump is not charged as an insurrectionist, an ongoing campaign by the organizations Free Speech for People and Mi Familia Vota to have Trump kept off the ballot in the 2024 election could be thwarted. The campaign is based on the Fourteenth Amendment’s prohibition on insurrectionists from holding public office. The advocacy groups have been urging secretaries of state to keep Trump off the ballot based on him being an insurrectionist, but if the DOJ declines to charge Trump with inciting or aiding an insurrection, that would likely significantly lower the chances of any state going along with the campaign.

Tangent

The DOJ’s indictment could be one of two Trump faces this summer for his efforts to overturn the 2020 election. Fani Willis, the district attorney in Fulton County, Georgia, and her office are also investigating whether Trump’s efforts to overturn Georgia’s election violated state law, particularly Trump’s phone call with Secretary of State Brad Raffensperger in which Trump asked the secretary to “find” enough votes to flip the election. A grand jury was sworn in last week to hear evidence in that probe—after a separate special grand jury reportedly recommended multiple indictments—and charges are expected to come out in August.

Key Background

Trump and his allies waged a major multi-state effort to overturn the results of the 2020 election, which included an almost entirely unsuccessful legal campaign, the “fake electors” scheme and an effort to block Congress’ certification of the votes that ultimately led to the January 6 riot at the Capitol building. The DOJ has been investigating the January 6 riot since soon after the incident occurred, and reports emerged last summer that investigators appeared to be zeroing in on Trump’s post-election actions as part of the criminal probe. Trump’s possible indictment comes after the House January 6 Committee previously concluded that Trump pushed false claims about the election fraud despite being told they were false and directly incited the January 6 riot, “The central cause of January 6th was one man, former President Donald Trump, whom many others followed,” the committee’s final report argued. “None of the events of January 6th would have happened without him.”