Trump Indicted on Four Counts in Special Counsel’s 2020 Election Interference Probe – Here’s How This Case Stacks Up to the Others

AP Photo/Charlie Riedel

Two weeks after former President Donald Trump announced that he received a letter from Special Counsel Jack Smith stating that he was the target of a Washington, DC grand jury investigation related to January 6 and efforts to overturn the 2020 election, the 2024 GOP hopeful was indicted for the third time this year.

If you are keeping score, Trump is now facing a grand total of 78 criminal counts – including the four brought by Smith in this case – across three different indictments in New York, Florida, and Washington, DC. It is still believed there is a fourth to come at the hands of Fulton County District Attorney Fani Willis in relation to election interference in Georgia.

On Wednesday’s show, Megyn was joined by former Assistant U.S. Attorney Andy McCarthy to discuss the nitty gritty of the latest indictment and how it compares to the other legal battles Trump is facing.

The Latest Indictment

Since being appointed by Attorney General Merrick Garland in November 2022, Smith has led a wide-ranging investigation into the former president. Earlier this summer, a Miami grand jury convened by Smith indicted Trump on 37 felony counts over his alleged mishandling of classified documents

On Tuesday, Smith announced he is bringing four charges against the forty-fifth president in connection with his attempts to overturn the 2020 election result. The introduction to the  45-page indictment claims the defendant (a.k.a. Trump) was “determined to remain in power… despite having lost” the 2020 election. It alleges Trump knew he lost but pushed his theories about a stolen election anyway:

“For more than two months following Election Day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But the Defendant repeated and widely disseminated them anyway – to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”

With that in mind, the four charges in the indictment include:

  • Charge 1: Conspiracy to defraud the United States
  • Charge 2: Conspiracy to obstruct an official proceeding
  • Charge 3: Obstruction of, and attempt to obstruct, an official proceeding
  • Charge 4: Conspiracy against rights

The three conspiracy counts relate to various attempts to overturn the 2020 election results by Trump and his team, while the obstruction charge deals with the certification of the Electoral College results before and during a joint session of Congress. All old, the charges carry a combined 55 years in prison. 

Perhaps the more interesting takeaway is what is not included. The indictment does not charge Trump with the crime of inciting a riot on January 6, 2021, when thousands of his supporters marched on the Capitol. It was previously speculated that it might. 

Additionally, six co-conspirators are described but not named in the indictment. They are believed to include attorneys Rudy Giuliani, John Eastman, and Sidney Powell and it is unclear if any or all of them will face their own indictments.

The Judge and Jury

Based on Smith’s actions so far in this case, Megyn and McCarthy agreed that there is a rush to get it litigated. As it relates to the judge and jury pool, it would appear as though the prosecution has an edge irrespective of the charges.

The federal judge randomly selected to oversee the former president’s criminal case is U.S. District Court Judge Tanya Chutkan. Nominated by former President Barack Obama, Chutkan is no stranger to January 6 litigation. In November 2021, she rejected Trump’s attempt to block the House select committee investigating January 6 from accessing more than 700 pages of records from his administration. She has also presided over more than a dozen cases involving protestors, and her sentences led the Associated Press to dub her the “toughest punisher” of those involved in January 6. 

As Megyn has previously explained, more than 90 percent of DC voters cast ballots for President Joe Biden in the 2020 election. That no doubt impacted the makeup of the grand jury that brought this indictment and would play a role in the type of jury that would be hearing this case should it make it to trial.

McCarthy believes Smith has taken this into account. “Obviously [he wants to] get it in front of them before the election because he thinks you’ll not only get the proof out but you’ll get a conviction from that jury,” he said. “He has an Obama judge who may be like the worst draw that [Trump] could have gotten from the District of Columbia.”

Even so, he believes Smith has “probably been too clever by half” because of the mounting indictments. “If you’re Smith and you really want to get this case tried before the election, you don’t indict the Mar-a-Lago case first,” McCarthy noted. It gives Trump “a very powerful argument to make to any decent judge that what Smith has done is tactically tried to undermine his right to prepare his defense because the Mar-a-Lago case is very complicated and this case is very complicated,” he added.

How Strong Is the Case?

So, how strong is this indictment? McCarthy believes there is going to be “a lot of pretrial litigation” in this case because of the charges Smith has chosen. “I think he’s stretched statutes that Congress enacted that were not meant to address this behavior,” he shared. “And he’s done it in the face of the Supreme Court just in May warning prosecutors… ‘Don’t get creative – you can only charge what Congress has actually codified.'”

At the heart of this indictment, Megyn said, is the allegation that the former president defrauded the American public in regards to the 2020 election results. “They are positing he knew he lost and, therefore, it was dishonest and fraudulent for him to run around telling everybody he didn’t lose and that they should behave accordingly,” she noted. “That’s a high bar.”

In McCarthy’s view, the prosecutors are going to try to say that there were “a number of reliable people” – like former Attorney General Bill Barr and members of the intelligence community – who told Trump “there was no material fraud that could have overturned the election.” The fallacy is that, in a criminal case, McCarthty said it’s what the defendant thought that matters. “Trump is going to come back and say he was hearing a lot of other things from a lot of other people,” he said. 

Megyn agreed. “Trump more than likely did not believe any of those people,” she explained. “It appeared to us all that he believed Rudy Giuliani and Sidney Powell, his lawyers who were telling him they had fraudulent examples.” In her estimation, “that’s what Trump wanted to hear and wanted to believe,” which leaves us with an interesting conundrum. “We’re now at the point where you have to believe certain officials over other officials – including your own lawyers – or you’re a criminal,” she asked.

McCarthy said that is a very interesting question that he believes is best left to debate in a political science class, what prosecutors will have to prove is Trump’s state of mind – if the case makes it to trial. Even if you believe that the former president knew everything he was saying was false, McCarthy said that “would not remove it from being unprotected speech.”

In the U.S., McCarthy emphasized that the “line you have to stay on the right side of” is violence – not “aggressive speech,” or “obnoxious speech,” or “false speech” that falls into the “core” of the First Amendment. “[In] politics… you get to say things that are untrue,” he concluded. “And thank God for it because everybody in Washington would be looking at a federal indictment if that weren’t true.”

You can check out Megyn’s full conversation with McCarthy by tuning in to episode 600 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.