Trump Jan. 6 case: Legal experts break down our FAQs

For the third time in as many months, former President Donald Trump is expected to be indicted on criminal charges.

Trump announced last week that he is a target of the Justice Department’s investigation into the insurrection of Jan. 6, 2021, saying he received a so-called target letter from special counsel Jack Smith, who has been leading the federal investigation into the Capitol attack and Trump’s efforts to hold onto power after he lost the 2020 election.

Trump received a similar letter from Smith shortly before his indictment last month on 37 counts stemming from a separate DOJ probe into his handling of classified material after he left office.

The latest letter reportedly informed Trump he is facing three potential criminal charges: conspiracy to commit an offense against or defraud the United States; deprivation of rights; and witness tampering.

Yahoo News spoke with several legal experts for answers to some frequently asked questions surrounding Trump’s latest potential indictment as well as the other cases against the former president.

How likely is it that former President Trump will be indicted in the DOJ’s Jan. 6 case?

Very, said New York criminal defense lawyer Andrew Bernstein.

“I could point to a hundred little things that might say why the indictment [is] coming, but that target letter speaks for itself,” Bernstein said. “I can’t take it to mean anything other than in a case of this magnitude that the government is going to indict him.”

Have you ever seen a case where someone receives a target letter and does not end up being indicted?

“It does happen sometimes, when good lawyering saves the day,” said Kevin O’Brien, former assistant U.S. attorney in the Justice Department and partner at Ford O’Brien Landy. “Sometimes a lawyer will make an argument or they’ll make what's called a proffer, an explanation of the facts that is persuasive. But I don’t think either of those scenarios are going to happen here.”

According to multiple reports, the letter informed Trump that he is facing three potential criminal charges. What do each of these mean?

Conspiracy to commit an offense or to defraud the United States: According to Bernstein, this charge refers to an agreement made with others to commit a crime, regardless of whether the crime itself was actually committed. “Jack Smith would have to lay out that Donald Trump and one other person agreed to commit an act that would defraud the U.S. government,” he said. “So it’s a very good sort of catchall charge.”

Tampering with victims, witnesses or informants: “This is anyone who is trying to stop a witness or an informant from coming forward and giving correct testimony,” Bernstein explained.

Conspiracy against rights: “If you’re agreeing with one other person and you’re intending to impede, infringe or prevent someone’s free exercise of their rights, this is a potential charge,” Bernstein said. Trump’s alleged actions tied to Jan. 6 could include interfering with then-Vice President Mike Pence’s certification of the election results.

If the former president is indicted in this case, how serious would it be compared with his previous indictments?

Anytime someone is charged with a felony, it’s serious for the defendant. But if Jack Smith’s office indicts Trump a second time, it could be even more serious for the U.S. justice and political system than the others.

“The indictment relates to how Trump conducted himself after the 2020 election, and it would progress toward a trial as Trump is seeking the 2024 Republican nomination,” said Christine Adams, a former federal prosecutor and partner at Los Angeles-based Adams, Duerk & Kamenstein. “Neither of Trump’s other two cases relate as directly to what’s happening right now in American politics, which is that we’re in the middle of another contentious presidential campaign.”

Some experts have pointed to a clause in the 14th Amendment that bars any former elected official who participated in an insurrection from ever holding public office again. If Trump is convicted of any of these charges, would it prevent him from serving as president?

It likely would not — unless there’s something in the indictment that specifically alleges an insurrection, said Richard Serafini, a former senior trial attorney in the Justice Department’s criminal division and a criminal defense attorney based in South Florida.

“It would depend to a great degree on what exactly he’s charged with,” Serafini said.

Bernstein said he would be shocked if Trump is actually brought up on insurrection charges. “I don't think we’re living in a world where it’s so clear that anything — absent a conviction — is going to give someone the power of the 14th Amendment to disqualify Trump from being on the ballot.”