Trump's Accusations: What Law Was Broken?

Former US President Donald Trump has been accused of breaking several laws, including those related to the January 6 insurrection, hush money, and election and tax laws.

The House Jan. 6 committee has referred Trump for prosecution on four charges: obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement, and inciting or aiding an insurrection. These referrals carry no legal weight, but the Justice Department is conducting its own investigation.

In March 2023, Trump became the first sitting or former US president to be indicted on criminal charges. He was charged with 34 felony counts of falsifying business records to conceal payments made to the pornographic film actress Stormy Daniels as hush money to buy her silence over a sexual encounter. Trump was convicted on all counts in May 2024 and received an unconditional discharge in January 2025.

Obstruction of an official proceeding

The official definition of the crime, as codified in 18 U.S.C. § 1512(c)(2), states:

> (c) Whoever corruptly—

> (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or

> (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

> shall be fined under this title or imprisoned not more than 20 years, or both.

The term "official proceeding" is defined in 18 U.S.C. § 1515(a)(1) to include proceedings before federal judges, Congress, federal government agencies, and regulators of insurance businesses.

In the context of former President Donald Trump, the House Jan. 6 committee urged the Justice Department to consider prosecuting him for obstruction of an official proceeding, among other crimes. This was in relation to his efforts to overturn the results of the 2020 presidential election and his behaviour during the insurrection at the U.S. Capitol on January 6, 2021. The committee presented evidence that Trump attempted to obstruct the certification process by pressuring Vice President Mike Pence to prevent the votes from being certified and by rallying his supporters in Washington on the day Congress was meeting.

The Justice Department has brought obstruction of an official proceeding charges against dozens of rioters involved in the Capitol attack, including members of extremist groups such as the Proud Boys and Oath Keepers.

Conspiracy to defraud the United States

> "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."

The law further specifies that if the offense committed is a misdemeanor, the punishment for the conspiracy cannot exceed the maximum punishment for that misdemeanor.

The statute has been interpreted by the Supreme Court of the United States in the 1924 case of Hammerschmidt v. United States, where Chief Justice William Howard Taft defined "conspire to defraud the United States" as:

> "primarily [meaning] to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest."

The Department of Justice's interpretation of the statute states that activities that defraud the United States typically affect the government in one of three ways:

• They cheat the government out of money or property;
• They interfere or obstruct legitimate government activity; or
• They make wrongful use of a governmental instrumentality.

In addition, the intent required for a conspiracy to defraud the government is that the defendant intended to (a) defraud, (b) make false statements or representations to the government or its agencies to obtain government property, or (c) performed acts or made statements that the defendant knew to be false, fraudulent, or deceitful to a government agency, disrupting the agency's functions.

An actual loss of government property or funds is not required for a conviction under this statute. Instead, the government must prove that the defendant's activities impeded or interfered with legitimate government functions.

Conspiracy to make a false statement

To be convicted of this crime, the prosecution must prove beyond a reasonable doubt that:

• The defendant and others engaged in dishonest practices or made false statements in connection with a program administered by a US government agency.
• The defendant possessed the intent to defraud, make false statements, or misrepresentations to the government or its agencies to obtain government property.
• The defendant performed acts or made statements that they knew to be false, fraudulent, or deceitful to a government agency, disrupting the functions of the agency or the government.

It is important to note that the prosecution does not need to prove that the defendant's statements ultimately resulted in any actual loss to the government. Instead, they must demonstrate that the defendant's activities impeded or interfered with legitimate governmental functions.

In the case of former President Donald Trump, the House Jan. 6 committee referred him to the Justice Department for consideration of prosecution on four charges, including conspiracy to make a false statement. The committee presented evidence of an alleged scheme by Trump allies to submit "fake electors" in states won by Biden to obstruct the certification of the 2020 election results. The Justice Department is known to be investigating this scheme, and Trump is accused of being a participant.

Inciting or aiding an insurrection

On December 19, 2022, the U.S. House committee investigating the January 6, 2021, attack on the Capitol voted to refer former President Donald Trump to the Justice Department for potential criminal charges, including inciting or aiding an insurrection. The committee's seven Democrats and two Republicans all voted in favour of the referral, which also included three other charges: obstructing an official proceeding, conspiring to defraud the United States, and conspiring to make a false statement.

The committee's referral carries no legal weight, and federal prosecutors are conducting their own investigation. However, the referral is seen as a "roadmap to justice", and the focus has now shifted to the Justice Department and whether it will agree that there is sufficient evidence for prosecution.

The inclusion of the insurrection statute represents an attempt to hold Trump accountable not only for his actions but also for his inaction during the Capitol riot. Under the statute, Trump need not have coordinated with supporters to carry out a rebellion. Instead, one could violate the statute by simply aiding an insurrection or giving comfort to those participating in it.

Trump was previously impeached by the House on a charge of incitement after the attack on the Capitol but was later acquitted by the Senate. Some legal experts have questioned whether the Justice Department could successfully prosecute Trump for inciting the insurrection based solely on a speech he gave at the Ellipse that preceded the riot. In that address, he encouraged the crowd to "fight like hell" but also told them to proceed peacefully to the Capitol.

The committee noted that Trump summoned rioters to Washington on January 6, 2021, with the goal of mobilising a large crowd of supporters. They also observed that some of the accused rioters charged by the Justice Department cited Trump's tweets as their inspiration. During the attack, Trump showed no concern when the crowd chanted, "Hang Mike Pence!" and for hours, he resisted advisers' pleas to tell the rioters to disperse.

While the law regards inciting an insurrection as a serious offence, with the statute barring anyone convicted of it from holding future office, prosecuting Trump under this statute presents several challenges. Special Counsel Jack Smith, who led the investigation into Trump's 2020 election subversion, considered charging Trump with insurrection but ultimately decided against it due to the narrow interpretation of the law and the lack of precedent for similar prosecutions.

Violating the Federal Information Security Modernization Act

The Federal Information Security Modernization Act (FISMA) is a federal law that establishes a framework of guidelines and security standards to protect government information and operations. It was passed in 2002 as the Federal Information Security Management Act and was amended in 2014 to address the increasing number of cyber attacks on the federal government.

The act codifies the Department of Homeland Security's (DHS) role in administering and overseeing the implementation of information security policies for federal executive branch civilian agencies. It also requires the DHS to assist the Office of Management and Budget (OMB) in developing these policies.

The legislation provides the DHS with the authority to:

• Develop and oversee the implementation of binding operational directives for other agencies, in coordination with the OMB.
• Provide operational and technical assistance to other federal executive branch civilian agencies upon request.
• Deploy technologies to other agencies' networks upon request.

The act also directs the OMB to:

• Revise policies regarding the notification of individuals affected by federal agency data breaches.
• Require agencies to report major information security incidents and data breaches to Congress as they occur and annually.
• Simplify existing FISMA reporting to eliminate inefficient or wasteful reporting while adding new reporting requirements for major information security incidents.

In addition to these provisions, FISMA defines three security objectives for information and information systems:

• Confidentiality: Preserving authorized restrictions on information access and disclosure, including means for protecting personal privacy and proprietary information.
• Integrity: Guarding against improper information modification or destruction and ensuring information non-repudiation and authenticity.
• Availability: Ensuring timely and reliable access to and use of information.

To comply with FISMA, agencies must implement continuous monitoring, conduct annual security reviews, perform risk assessments, document controls in the system security plan, meet baseline security controls, and perform system risk categorization.

Legal experts have argued that granting Elon Musk's team at the Department of Government Efficiency (DOGE) access to sensitive government data potentially violates FISMA, as it involves granting access to personal data and sensitive financial information. This move has raised concerns about the potential for misuse or mishandling of data and has led to legal challenges.

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