Though Donald Trump has sometimes been called “Teflon Don“–a label that connects not just to his own name but to his modus operandi–the truth is not that he has escaped consequences for everything, just his most egregious behavior. He has lost defamation cases, his company got dinged for tax evasion, and he has been charged with byzantine business crimes. But his biggest sins–especially trying to steal the 2020 presidential election–have gone unpunished.
That pattern could break soon. Trump issued a statement this morning saying that he received a “target letter” from Special Counsel Jack Smith of the Justice Department Sunday night. He said Smith gave him four days to report to a grand jury investigating Trump’s attempts to subvert the 2020 election and the January 6, 2021, riot at the Capitol. Such letters are usually a prelude to an indictment.
Trump is not the most reliable source. He is an inveterate liar, and in March incorrectly claimed that his arrest in a case in New York was imminent–as it turned out, he was arrested, but not until some time later. Nonetheless, some media outlets have confirmed with other sources that Trump received the letter, and the news meshes with what was already known about Smith’s investigation.
If it’s reasonable to assume that Trump is indeed likely to be charged with crimes related to January 6, that still leaves big questions. Most important of them is what crimes those might be. Rumored possibilities include fundraising violations, the old prosecutorial workhorse of wire fraud, and even insurrection–an extremely rare charge, but one the House committee investigating January 6 referred to the Justice Department.
Smith could choose to make a broad case against many participants in the paperwork coup, which would be a more complicated case but would be likely to net convictions, or he could focus more narrowly on Trump or a small cadre of aides, which could be a simpler case but would be even more politically incendiary.
Trump finds himself in legal trouble in jurisdictions across the country–so many that his lawyers cited them last week when asking for a delay of a trial in federal court over mishandling of classified documents. (Smith indicted Trump in that case last month.) In Manhattan, the former president faces charges centering on hush-money payments to an adult-film actor who said she had a sexual relationship with him. The district attorney in Fulton County, Georgia, is widely expected to bring charges related to the 2020 election sometime in August.
These cases can be plotted along two axes: probability of conviction and seriousness of crime. A crime is a crime, but the Manhattan case is relatively small potatoes, and some legal observers think the prosecution’s legal theory is dubious. The documents case is not only very serious–it concerns some of the most sensitive materials for national security–but the facts are relatively straightforward and damning for Trump. The Fulton County case is serious, in that it touches on the attempts to subvert the election, but also limited to actions in Georgia; handicapping the odds of the conviction there is challenging.
But a potential federal case related to January 6 might be the most important one. The offenses could hardly be more serious: Trump sought to thwart the will of voters, first by legal and political schemes and then, more desperately, by force. No president has ever attacked the basis of American democracy so directly; even Nixon’s misdeeds pale in comparison.
In layman’s terms, Trump is obviously guilty. Everyone watched him claim he’d won an election he didn’t. They listened to him pressuring officials including Georgia’s Brad Raffensperger to find votes for him. They heard him incite the riot on January 6. His actions were bad enough that the House of Representatives impeached him, and a majority of senators, including some Republicans, voted to convict–though still short of the two-thirds required for a conviction.
Yet something can be plainly true in common parlance and still be challenging or impossible to prove to a jury. “You and I know it, it’s not a secret, but proving it beyond a reasonable doubt, in a court of law, with admissible evidence, in a contested hearing, is a lot harder,” the former federal prosecutor Paul Rosenzweig told me earlier this year. In February, Trump released a memo laying out his likely defense against any charges related to the riot. In his statement today, he described the case against him as “election interference,” an amazing instance of I’m-rubber-you’re-glue chutzpah.
Political sensitivities are unavoidable, too. No matter what Smith might indict on, it would be unprecedented. Trump would be contesting the charges in the midst of an election. His lawyers are already seeking to push any trial in the documents case out past the 2024 election, and if he were to win, he would likely be able to order the Justice Department to close the case against him.
All of these factors mean that no one can confidently predict a conviction, much less incarceration. But a target letter related to January 6 would be one of the first concrete steps toward holding Trump accountable for his offenses against the United States.