August 19, 2023

“It’s like murdering babies!”

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So said one lawyer defending the latest federal indictment of President Trump against the charge that it seeks to throw Trump in jail for exercising his First Amendment rights. Many legal experts argue that an indictment for criminal conspiracy cannot just be about First Amendment-protected activity. Others argue that a conspiracy may include all sorts of legally protected activity, like purchasing knives or driving to the scene of a crime, but conspiracy to murder babies is a crime because murder is a crime.

The anti-indictment experts are right. The others miss the point.

First, the legal basics: a standard criminal conspiracy comprises two parts: (1) an agreement among conspirators (2) to accomplish a criminal object. For any conspirator to be liable for a criminal conspiracy, at least one must also (3) commit an “overt act” — that is, do something — for the purpose of accomplishing the criminal end. The overt act need not be a crime in itself, and the criminal object need not ever have been accomplished.

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You can’t be indicted without specific facts alleged. You can’t be sent to trial on an indictment that just says “you violated such and such federal law.” The indictment must say how. So a conspiracy indictment must do more than merely list a provision of a criminal statute as the object of a conspiracy. It must identify a specific result intended by the conspirators that is a crime.

So if the indictment alleges an agreement to murder babies at the Blackacre nursery, we imagine that a conspirator entered the nursery and murdered the babies. Would he have violated the murder statute? Yes. Is the conspiracy allegation thus sufficient? Yes.

As if by turning a dial, we figure out which act is the one that would push the intended result over the line into a crime. To zero in on exactly what is the alleged criminal object of the conspiracy, we imagine other results and ask the same questions.

Imagine that the conspirators knocked on the door of the Blackacre nursery. Would that have been a crime? No. Can a conspiracy indictment allege only that the conspirators agreed to knock on the door to see if anyone would answer? No. Would it make any difference if the indictment slapped the label of the federal murder statute onto those deficient factual allegations? No.

The criminal end and the alleged agreement have to line up. The indictment cannot be specific on the supposed crime but wishy-washy on the agreement. It cannot say, for example, that the agreement was for “challenging an election” but the criminal end was for “hacking voting machines.”

Now, apply the law to the indictment. What intended result does the Trump indictment allege to have been the criminal object of the Trump conspiracy?