Quick Tip: Inchoate Offenses

A federal grand jury yesterday charged former President Donald Trump with four felony counts related to his efforts to remain in power following the 2020 election.

The 45-page indictment charged Trump with the following counts:

Count 1: Conspiracy to defraud the United States;

Count 2: Conspiracy to obstruct an official proceeding;

Count 3: Obstruction of and attempt to obstruct an official proceeding; and

Count 4: Conspiracy against rights.

Both “conspiracy” and “attempt” are inchoate offenses. An inchoate offense is a type of crime that is committed by taking a punishable step towards the commission of another crime. There are three inchoate offenses, with “solicitation” being the third.

Each inchoate offense requires a target crime (i.e., the crime intended). In the case of yesterday’s indictment, one of the target crimes for which Trump is accused of committing was obstruction of an official proceeding, identified in Count 3. Trump is also accused of conspiracy to obstruct an official proceeding and attempt to obstruct an official proceeding.

A conspiracy is an agreement between two or more people to commit a crime, along with an intent to achieve the agreement’s goal. An attempt occurs when an individual takes a substantial step towards the commission of a target offense, but ultimately fails to complete the crime. (Solicitation—which isn’t part of the Trump indictment—involves seeking out another person to engage in a crime.)

For bar exam purposes, it’s important to note that the inchoate offenses of attempt and solicitation merge into the target offense. Conspiracy doesn’t merge with the target crime. This means that if a suspect is charged with committing a specific crime, they cannot also be charged with attempt and solicitation of that same crime. However, both conspiracy to commit a crime and the crime itself may be charged together.