#5 questions raised by the Trump indictment

Former President Trump is expected to be arraigned for the third time Thursday.

Trump faces four charges in Washington pertaining to his efforts to overturn the results of the 2020 election. He denies wrongdoing.

But even amid the detail in the 45-page indictment made public on Tuesday, there are a number of questions still unanswered.

Here are some of the major ones.

Can prosecutors prove Trump knew his claims were false?

This question is the key to the case.

The indictment alleges on its first page that Trump made claims about election fraud “that were false, and the Defendant knew that they were false.”

Trump still contends the election was stolen, however. Although this is factually untrue, it sets a predicate for Trump’s broader argument that his efforts to overturn the result were a good-faith effort to right a wrong.

His lawyers and media allies have been putting forward a similar idea since the indictment was released. 

“He’s being indicted for objecting to the way that the 2020 election was carried out,” Trump lawyer John Lauro told Fox News on Tuesday evening.

But there are two sides to that story.

The indictment makes clear that false claims in and of themselves would not be criminal. 

Rather, the alleged criminal acts involve using those false claims to pressure everyone from state officials to the Department of Justice to then-Vice President Mike Pence to try to stop the election results from being certified.

Prosecutors also note how many people told Trump his claims were false, only for him to continue to assert their veracity in public. 

Trump was told various claims were false by Pence, senior members of the Department of Justice, senior members of his campaign team and state-level officials who had been firm supporters of his reelection effort — among others.

Ty Cobb, who was special counsel to the Trump White House during the Mueller investigation, noted another problem with centering a legal defense on the idea Trump was acting in good faith.

“There is only one person who can testify to that, and is he going to take the stand? No!” Cobb said, referring to Trump. “To be asked, ‘Were you lying when you said this?’ followed by four thousand TV clips?”

Why was Trump not charged with aiding or inciting an insurrection?

The House Select Committee investigating Jan. 6, 2021, made referrals — in essence, recommendations of prosecution — on four charges against Trump, including aiding an insurrection.

But special counsel Jack Smith did not seek a conviction on that charge.

There are two likely reasons, according to legal experts: uncertainty as to whether a conviction could be secured on such a charge, and the more practical issue of whether it would prolong the whole legal process.

“I do think there was sufficient evidence to indict him for inciting an insurrection,” said Renato Mariotti, a former federal prosecutor. “However there are challenges that would … have slowed down the case — and potentially derailed the prosecution. So [Smith] made a tactical decision not to pursue that charge.”

Cobb, the former Trump White House lawyer, added: “The proof is simply not there for incitement and sedition, or seditious conspiracy, for him. There are legitimate First Amendment arguments against an incitement charge against him.”

It’s not as if the charges Trump faces are minor. The two most serious, both pertaining to obstructing an official proceeding, each carry a maximum sentence of 20 years in prison.

Who is ‘Co-Conspirator 6’?

This is one of the most intriguing questions from the indictment. 

Prosecutors referenced six unnamed alleged co-conspirators with Trump, and five of them were speedily identified. They appear to be former New York City Mayor Rudy Giuliani, lawyers John Eastman and Sidney Powell, former Department of Justice official Jeffrey Clark and another lawyer, Kenneth Chesebro.

A deeper mystery surrounds the identity of “Co-conspirator 6,” in part because of how broadly he or she is described.

The person in question is, according to prosecutors, “a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.”

There has, of course, been avid speculation on social media. 

The New York Times noted some of the details elsewhere in the indictment appeared to fit longtime Trump ally Boris Epshteyn. But the paper emphasized this was not definitive, and a lawyer for Epshteyn had declined to comment.

A definitive answer could come if the co-conspirators are themselves indicted but, despite rumors to that effect on Wednesday afternoon, this does not appear to have happened so far.

How big a fundraising boost will Trump get?

Supporters of the former president have been moved to open their wallets for him during his previous indictments.

But, as Politico first noted on Tuesday, Trump appears to have raised less money in the immediate aftermath of his second indictment than his first.

Citing data from conservative online fundraising platform WinRed, the outlet noted Trump raised almost $4 million on the day he pleaded not guilty in the first case, brought by Manhattan District Attorney Alvin Bragg (D) and alleging falsification of business records.

By contrast, his June 13 arraignment in Miami regarding the Mar-a-Lago documents case produced a haul of $1.3 million on WinRed.

Will the latest indictment produce a higher spike or will the slide continue?

When will a trial take place?

This is anybody’s guess.

U.S. District Judge Tanya Chutkan, who has been assigned the case, has a reputation for a no-nonsense approach and a desire to move through the process promptly.

But Trump has a clear motivation to stall. If he were to win the presidency back in 2024, before a verdict was reached or appeals were exhausted, he could simply order the Department of Justice to abandon its prosecution of him.

Doing so would cause a massive storm, but Trump has weathered those before.

Harry Litman, a former deputy assistant attorney general, said he believed a trial was “likely” to take place before the 2024 election, noting Smith seems to be making decisions motivated in part by finding “the fastest possible time to trial.”