PolitiFact FL: What to know about Donald Trump's indictment
Former President Donald Trump has been indicted by a grand jury investigating the events of Jan. 6, 2021. It is the third indictment for Trump, who is the front-runner for the 2024 Republican presidential nomination.
The indictment, handed up in Washington on Aug. 1, includes four counts under the following statutes:
- Conspiracy to defraud the United States (18 U.S. Code § 371);
- Corruptly obstructing an official proceeding (18 U.S. Code § 1512);
- and conspiracy against constitutional or statutory rights (18 U.S. Code § 241).
In brief remarks shortly after the indictment was made public, special counsel Jack Smith said that Trump's attempt to overturn the election was "fueled by lies."
Here are some questions and answers about the indictment and what could come next.
What is an indictment?
An indictment is one way to bring charges against someone suspected of a crime.
Charges can be brought forward in criminal cases through an indictment by a grand jury, by a prosecutor’s direct filing, or following a probable cause arrest by a law enforcement officer.
In the Jan. 6 case, prosecutors decided to seek an indictment by a grand jury. Grand juries consist of local residents and are convened the same way as trial juries, except they must agree to be available for weeks or months, depending on the jurisdiction.
Grand juries meet in secret to let witnesses testify freely and avoid interference for jurors. The grand jury is part of the prosecutor’s investigative process; it lets prosecutors test evidence and get a reaction.
If the grand jury votes for an indictment, it does not mean a defendant is guilty; it means the jurors agree that formal charges should be filed. Those charges are then weighed at trial, unless the defendant reaches a plea agreement with prosecutors first.
Has a president ever been indicted before Trump?
Before Trump, no American president was indicted on criminal charges either while in office or afterward.
- The first indictment was secured by Manhattan District Attorney Alvin Bragg in New York in April. It concerned hush money paid to adult film star Stormy Daniels.
- The second indictment was secured by Jack Smith, who is the federal special counsel investigating Trump, over Trump’s post-presidential handling of classified documents and efforts to keep federal officials from taking them back.
Besides the indictment over the events of Jan. 6, Trump is at risk of being indicted in Fulton County, Georgia, over the post-election calls he made to Georgia state officials and other efforts to overturn the election.
American presidents have been investigated by special counsels for conduct while in office, including Richard Nixon, Bill Clinton and Trump. But a pair of federal legal opinions are widely interpreted as protecting sitting presidents from prosecution.
Why was the indictment done in Washington?
Many of the actions at issue occurred in Washington, notably the events of Jan. 6, 2021, in and around the U.S. Capitol.
The two other existing indictments currently playing out are elsewhere. The case over payments to Stormy Daniels, the adult film actor, is being tried in New York, where Trump was based when the alleged crimes occurred. The federal documents case is playing out in South Florida, near Trump’s Mar-a-Lago resort, where the government says he stashed classified material.
The remaining potential indictment, if it happens, would come in Fulton County, Georgia, where Trump is accused of trying to strong-arm Georgia state officials into changing election results so he could win the state in the 2020 election.
What is the next step?
Trump will be ordered to appear at an arraignment — a short hearing, sometimes lasting only minutes, in which charges are formally presented. According to the Justice Department, Trump has been summoned to appear at 4 p.m. on Aug, 3 before Magistrate Judge Moxila A. Upadhyaya at the E. Barrett Prettyman Courthouse in Washington, D.C. Trump would be expected to enter a not guilty plea and request a jury trial.
As was the case for his arraignments on the previous charges in New York and Florida, Trump almost certainly won’t be handcuffed.
What do the charges entail?
The charge of conspiracy to defraud the United States involves an agreement between at least two people, related to committing another crime, with at least one co-conspirator making at least one overt act to further the conspiracy.
The indictment alleges that Trump and others "conspire(d)" to "obstruct" and "defeat" the "lawful federal government function by which the results of the presidential election are collected, counted and certified by the federal government."
By the law, the conspiracy’s goal does not have to be achieved; a failure to achieve the goal, such as overturning the 2020 presidential election, does not negate the conspiracy.
Meanwhile, the indictment’s inclusion of two charges of corruptly obstructing an official proceeding, specifies that Trump and his co-conspirators worked to "corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote."
Finally, the indictment alleges a conspiracy against constitutional or statutory rights by saying that Trump conspired with others "to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States, that is, the right to vote, and to have one's vote counted."
How do criminal charges against Trump affect whether he can run for president?
can keep running for president, just as he has been.
The U.S. Constitution upholds the principle that voters decide who shall represent them, and its qualifications are limited to natural-born citizenship, age (35 by Inauguration Day) and U.S. residency (14 years).
Convicted felons have run for president in the past. Lyndon LaRouche was convicted in 1988 of tax and mail fraud conspiracy and ran for president multiple times between 1976 and 2004.
Eugene Debs was convicted of violating the Espionage Act of 1917 for an anti-war speech, then ran for president under the Socialist Party banner from a federal prison in Alabama in 1920. Debs’ supporters handed out campaign buttons for "Prisoner 9653." The candidate who won the presidency that year, Warren Harding, eventually commuted Debs’ 10-year sentence, said James Robenalt, a lawyer who has written about the relationship between Debs and Harding.
State constitutions and laws include provisions that say people convicted of felonies can’t run for office, but these provisions apply only to state or local candidates.
How could having charges pending against Trump pose logistical challenges to his campaign?
An incarcerated candidate would not be able to appear in person on the campaign trail. But experts say the chance of Trump being incarcerated before trial, even temporarily, is effectively zero. He is likely to be released on his own recognizance without bail, as he has been in the two previous indictments.
Nevertheless, the need to appear in court as he runs for president could pose logistical challenges.
The first to come up would be the New York case, where a trial is scheduled for March 25, 2024. That would be in the thick of the early presidential primary season, potentially taking Trump off the campaign trail for days at a time.
Meanwhile, the initial trial date for the documents case is May 20, 2024, in Fort Pierce, Florida. It is widely believed that that date will be delated, as Trump asks the court to rule on questions of evidence and other legal issues. If the document trial isn’t pushed past Election Day 2024, it could come during the general election campaign when Trump might be the nominee.
Additional indictments could throw other scheduling challenges onto Trump’s calendar.
Would Trump be able to vote if he’s convicted?
Florida voters passed a ballot measure to ease the restoration of voting rights after a felony conviction, though Republicans pushed to tighten the requirements before restoration. However, voting rights can be restored in Florida only if the person has completed any sentence to prison, probation, or supervised release. If Trump is convicted and sentenced before he takes office, this process could take months, making it unlikely that he would also complete his full sentence before the November 2024 election.
This also all but eliminates the option of Trump switching his residence and re-registering in New York after making a high-profile statement of switching his residency to Florida in 2019.
If he’s convicted but wins the presidency, could Trump pardon himself?
No one knows for sure.
"There is no consensus among scholars on whether a president may pardon himself," Michael Gerhardt, a University of North Carolina law professor, told PolitiFact in 2020.
Perhaps the strongest argument that a self-pardon would be allowed is that the Constitution doesn’t explicitly prohibit it. However, there are several circumstantial arguments that, collectively, make a strong case that a self-pardon isn’t allowed, legal experts said.
The Constitution’s pardon clause uses the verb "grant," which ordinarily means giving to someone else, Harold H. Bruff, an emeritus University of Colorado law professor, told PolitiFact in 2020. Going back to its English monarchical origins, a pardon has long been conceived as an act of mercy. Neither of these suggest something that can be done to oneself.
Also, Bruff said that when the Constitution was being written, "a background value everywhere in the air was that no one should be a judge in their own cause." This notion, sometimes referred to in Latin as "nemo judex in causa sua," is a longstanding common law principle, he said.
"People cannot prosecute, judge, or sit on juries in their own cases. Like a judge who would have to submit to the authority of another judge if he were being prosecuted, a president must seek a pardon from his successor," wrote Brian Kalt, a Michigan State University law professor who has studied pardons.
That is what happened with President Richard Nixon. Gerald Ford, Nixon’s successor, ultimately gave Nixon a wide-ranging pardon for Watergate-related crimes.
"You never know until you have the temerity to try," said Daniel Kobil, a Capital University law professor. "Even Richard Nixon didn’t have the temerity to try it."
- Politico, "Tracking the Trump criminal cases," accessed July 28, 2023
- ACLU of Florida et al., "Voting With a Criminal Record in Florida: What You Need to Know," accessed Aug. 1, 2023
- PolitiFact, "The Trump documents indictment: Which charges are most serious? Can he still run in 2024?" June 9, 2023
- PolitiFact, "Ask PolitiFact: Can Donald Trump pardon himself?" Nov. 24, 2020
- PolitiFact, "Q&A: Can Trump run for president if indicted in Stormy Daniels case? What happens if he's arrested?" March 20, 2023
- PolitiFact, "What is an indictment and what does it mean for Donald Trump?" March 31, 2023
- PolitiFact, "Obstruction of justice, presidential immunity, impeachment: What you need to know," May 17, 2017
- PolitiFact, "Fact-checking Donald Trump’s CNN town hall claims on Jan. 6, abortion, Mar-a-Lago documents," May 10, 2023
Other sources linked in article