This model prosecution memorandum (or “pros memo”) assesses federal charges Special Counsel Jack Smith may bring against former President Donald Trump for alleged criminal interference in the 2020 election. The authors have decades of experience as federal prosecutors, criminal defense lawyers, and other legal expertise. We conclude that the evidence likely now meets Department of Justice standards to commence a prosecution. We base that conclusion upon a stream of recent disclosures in court filings and in the press that have come on top of the findings of the House Select Committee to Investigate the January 6th Attack on the United States Capitol (the “Select Committee”).

Our memo follows a common DOJ practice. Prior to indicting a case, federal prosecutors prepare a pros memo that lays out admissible evidence, possible charges, and legal issues. This document provides a basis for prosecutors handling the case and their supervisors to assess whether the case meets the standard set forth in the Principles of Federal Prosecution, which permit charges only when there is “evidence sufficient to obtain and sustain a conviction.”

Here, we conclude there likely is sufficient evidence to obtain and sustain a conviction of Trump for his three-step plan to overturn the election:

  1. Trump knew he lost the election but did not want to give up power, so he worked with his lawyers and others on a wide variety of schemes to change the outcome. Those schemes included creating fraudulent electoral certificates that were submitted to Congress, implicating statutes such as 18 U.S.C. § 371, which prohibits conspiracies to defraud the United States in the administration of elections.
  2. When all the other schemes failed, Trump and his lawyers ultimately concentrated on using the false electoral slates to obstruct the constitutionally mandated congressional certification of the election on January 6, implicating statutes such as 18 U.S.C. § 1512, which prohibits obstruction of an official proceeding. Their primary objective was to have Vice President Mike Pence in his presiding role on that day either block Congress from recognizing Joe Biden’s win at all or at least to delay the electoral count.
  3. When Pence refused, Trump went to his last resort: triggering an insurrection in the hope that it would throw Congress off course, delaying the transfer of power for the first time in American history. This implicated statutes such as 18 U.S.C. § 2383, which prohibits inciting an insurrection and giving aid or comfort to insurrectionists. (Section 2383 is rarely charged, and as we discuss below, this is a charge DOJ will use only with extreme caution. We believe there is sufficient evidence to pursue it—as did the Select Committee in making a criminal referral of Trump under that statute—but prosecutors may make different choices. Much will depend on the evidence the Special Counsel develops.)

Our own conclusions based upon the publicly available information are bolstered by the analysis of many other authorities:

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