More than 1,000 people charged over the US Capitol riot, millions of pages of evidence compiled by the House January 6 committee, hundreds of hours of depositions of key players – all this has finally been boiled down to a 45-page indictment that accuses Donald Trump of attempting to destroy American democracy.
“Why didn’t they do this 2.5 years ago?” the former president asked peevishly on Tuesday, shortly before the indictment came down. The answer lies in the document itself: in its painstaking command of detail and in the cool, crisp legal language deployed by special counsel Jack Smith to make his case.
This is the third time that Trump has been criminally indicted, and to some extent the shock value has worn off. Much of the content of the grand jury indictment filed in a federal court in Washington DC is familiar.
But no one can doubt the significance of its contents. For the first time in US history, legal charges have been brought against a president for attempting to disrupt the peaceful transfer of power that until 6 January 2021 had stood as a pillar of American values since a defeated John Adams quietly snuck out of the capital on 4 March 1801.
It’s taken two and a half years, sure, but Smith wastes no time in getting to the point. The second sentence of the indictment reads: “The defendant lost the 2020 presidential election”, taking us straight to that place where Trump so consequentially refused to go – the acceptance that he was a loser.
By the fourth sentence, it is clear that Smith has no intention of mincing his words. He rolls out the L-word – “lies” – with an ease which belies the months of angst that the editors of American newspapers went through before they felt comfortable enough to attach it to Trump.
Later, he accuses the former president of “fraud”, a charged word given the sequence of events. It was precisely that word that Trump used as the foundation stone of his bid to overturn the election – his lie that the 2020 election was riddled with fraud –and now it was being directed back at him.
Smith portrays the former president as a man who was prepared to tear down everything to stay in office. “Despite having lost, the Defendant was determined to remain in power.”
The Trump who emerges from the 45 pages is a frustrated man who, together with his unnamed and as yet uncharged co-conspirators, unleashed a concerted, relentless and fully conscious plan to subvert the 2020 election. Smith dates the plot to 14 November 2020, the day after Trump’s campaign lawyers had conceded defeat in court in Arizona, signalling that he had lost the presidential election.
That day, Trump turned to “Co-Conspirator 1” – a clear description of his lawyer Rudy Giuliani who is referenced at least 40 times – and who “executed a strategy to use knowing deceit in the targeted states to impair, obstruct and defeat the federal government function”.
“Knowing deceit” is critical, as it speaks to Trump’s state of mind that is likely to be a key legal battleground if and when the case goes to trial. Smith devotes pages to the subject, repeatedly underlining the allegation that Trump made “knowingly false claims” of fraud in the casting and counting of votes.
“These claims were false, and the Defendant knew that they were false,” the document reads. It goes on to list the many people and institutions that directly informed Trump that there was no evidence of fraud, from Vice-President Mike Pence down.
Familiar though they are, some of the details remain just too delicious for Smith – and by extension the Guardian – not to recount. He recalls that during the notorious call between Trump and Georgia’s secretary of state, Brad Raffensperger, in which the president asked him to “find” 11,780 votes, the defendant also claimed that 5,000 dead people had voted.
“The actual number were two,” Raffensperger replied. “Two. Two people that were dead that voted.”
The indictment largely follows the roadmap set out by the January 6 committee in its relatively elephantine 845-page final report. It traces the story of the fake electors who were convened in key battleground states lost by Trump in an effort to send illegal false electoral certificates to Congress.
Smith emphasises the extraordinary lengths to which Trump and his co-conspirators went, filing a petition to the US supreme court from Arizona on 11 December 2020 “as a pretext to claim that litigation was pending in the state”. Giuliani was concerned, the indictment alleges using his “Co-Conspirator 1” moniker, that it “could appear treasonous for the AZ electors to vote if there is no pending court proceeding”.
Sure enough, all 16 fake electors in Michigan have now been charged by the state attorney general, and further criminal counts are expected soon against some of the fake electors in Georgia.
The lengths to which the conspirators would go is another searing theme running through the indictment. In a previously untold tableau, we see Co-Conspirator 4, clearly identifiable as the former justice department official and Trump loyalist Jeffrey Clark, confronting a White House lawyer who warned him that if Trump refused to leave the presidency there would be “riots in every major city”.
“That’s why there’s an Insurrection Act,” Clark is alleged to have replied, alluding to the 1807 provision that empowers the US president to deploy the military to suppress civil disorder.
There are other surprises in the document. In the passage on the pressure applied on Pence in the run-up to his ceremonial counting of the electoral college votes on January 6, Smith nonchalantly drops in a mention that prosecutors have obtained the former vice-president’s contemporaneous notes.
That’s a revelation that should send a shiver down the spines of Trump’s defence team.
We learn, too, that on the day of the US Capitol riot, Trump and Giuliani continued to exploit the violence by calling lawmakers to implore them to delay certification of Joe Biden’s victory. Giuliani was badgering US senators even as late as 7.18pm.
The one argument that is absent here, significantly perhaps, is any suggestion that Trump personally orchestrated the uprising on January 6. It’s a striking omission, given some of the evidence that was heard by the House committee, including the sensational claim that Trump had tried to grab the wheel of his security vehicle and drive towards the Capitol building as the uprising was under way.
Its absence, though, points to the careful, cautious tone of the indictment, and to its purpose. Unlike the January 6 committee report, the job of this document is not to lay down a record for history.
Its task is to make a watertight legal case that Trump committed criminal acts that cut to the quick of the American experiment. There’s a lot riding on it: next year’s presidential election, the future of American democracy and that other consideration – a maximum sentence of 55 years in federal prison.
