At the end of the day, doesn’t this really come down to one factual question: “Did Donald Trump truly believe the election was fraudulent and that he was the true winner?” Or did he know that he lost but continued to lie about it to stay in power?
If the government can provide enough evidence that he knew that he lost and that there was not fraud on the level he was claiming, or at the very least that any reasonable person given the information he was given would have known that the election was not fraudulent, then I don’t see what the legal defense to the Obstruction of a Proceeding charge could be.
And the various conspiracy charges all hang directly on that.
So Trump really better hope that he can either taint the jury pool enough to get jury nullification or that Meadows really didn’t flip hard enough to provide solid evidence that Trump was both told that he lost fair and square and that Trump acknowledged that fact. Because if someone can testify that Trump acknowledged that he lost and that the fraud claims were false then it’s game-set-match.
And if your best bet is some combination of jury nullification and winning an election, then arguing in the court of public opinion is probably better than arguing in court itself.
No, it doesn’t come down to that. Even if he believed that (and even if he was right) the crimes would not be excused. “The bank owed me $500” (even if true) does not excuse bank robbery.
It seems like the response to that would be “Did he then act in a way that was legally appropriate?”. Assuming that he truly did believe what he was saying, that doesn’t mean he has free reign to respond however he likes. He still needs to act in a legally appropriate and acceptable way. The appropriate response in that situation would be to file legal challenges. That’s how we handle legal disputes in this country–even for voting issues around presidential elections. We saw that play out with Bush v Gore. So even if Trump truly believed the election was stolen, his response was not justified.
You sometimes hear criminals blame their victims for an attack. “Why was he so slow handing me his wallet? I wouldn’t have shot him had he just hurried up.”
At least that has the benefit of being self-consistent. As I said above, “Let’s have a war” is what Trump should have done. When you’re convinced that the entire system of government is rigged against you, the solution is not filing more appeals to that very same corrupt system of government.
That Trump was still trying to act like he was playing within the rules tells us everything we need to know. He was still hoping that he could game the system to let him win, and that the Democrats would accept that result if “the system” said he was the winner. You don’t rely on that unless you still believe the system can work.
Right. But it’s not entirely clear (to me at least) that asking the VP to disregard electoral counts is de-facto illegal in the way that robbing a bank is.
He at least had one lawyer telling him that the various schemes were legal remedies to a fraudulent election.
I’m just saying that if Trump knew that he lost then he is obviously guilty of both the conspiracy to defraud and the obstruction of a proceeding charge. So depending on what kind of evidence exists in this area it might be best for him to go for nullification and/or election as his best hope.
I haven’t put in the time to drill down on this, but …
The false statement need not be made with an intent to defraud if there is an intent to mislead or to induce belief in its falsity. Reckless disregard of whether a statement is true, or a conscious effort to avoid learning the truth, can be construed as acting “knowingly.” United States v. Evans, 559 F.2d 244, 246 (5th Cir. 1977), cert. denied, 434 U.S. 1015 (1978).
A defendant is not relieved of the consequences of a material misrepresentation by lack of knowledge when the means of ascertaining truthfulness are available. In appropriate circumstances, the government may establish the defendant’s knowledge of falsity by proving that the defendant either knew the statement was false or acted with a conscious purpose to avoid learning the truth. SeeUnited States v. West, 666 F.2d 16, 19 (2d Cir. 1981); Lange, 528 F.2d at 1288; United States v. Clearfield, 358 F. Supp. 564, 574 (E.D. Pa. 1973). Proof that the defendant acted with reckless disregard or reckless indifference may therefore satisfy the knowledge requirement, when the defendant makes a false material statement and consciously avoids learning the facts or intends to deceive the government. SeeUnited States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir. 1979).
From what I understand all the things trump was trying to do were, indeed, as illegal as robbing a bank. To me these things were ethically worse than robbing a bank. His intentions were to subvert an election and disenfranchise all of us.
Blast, > Under the Twelfth Amendment, the vice president (as President of the Senate) opens the electoral certificates. The act clarified the vice president’s limited role in the count.[4][8][9] Both houses could overrule the vice president’s decision to include or exclude votes, and under the Act even if the chambers disagree, the governor’s certification, not the vice president, broke the tie. On many occasions, the vice president has had the duty of finalizing his party’s defeat, and his own on some of those occasions. Richard Nixon, Walter Mondale, Dan Quayle, Al Gore, Dick Cheney, Joe Biden, and Mike Pence all notably presided over counts that handed them, or their party, a loss.[13][14]
Really, I’m pretty sure he knew he lost the election, but that’s beside the point of what he did. He broke the law. He knew he was breaking the law, and he did it anyway.
And there’s also the fact that he lied to his own “electors” about the documents they were being asked to sign. When they pushed back on the legality question, he told them that these were only “conditional” documents that would only be used if the courts agreed with his stolen election claims. He then turned around and actually tried to submit those documents without fulfilling that conditional.
This shows a clear intent to defraud, as far as I’m concerned. He BSed them in order to overcome their reluctance on this specific issue, and then used them in exactly the way he said he wouldn’t.
This makes perfect sense to me. I heard a legal expert emphasize that if someone knowingly commits a criminal act—meaning the act was deliberate, whether or not the defendant thought it was criminal—then it’s a crime. It’s (almost) never exculpatory to assert that one didn’t think it criminal OR that there was some justification.
So why do you suppose so many pundits are harping on whether or not Smith can establish that Trump knew he lost? Setting aside for the moment that he damn well knew…
That’s very intriguing. Would love to hear our legal experts chime in. Seems like this destroys any “he really thought he won” defense, even assuming such a defense had any weight.
That’s the public opinion battle, I think. If it isn’t established in court that Trump knew he was acting illegally, that gives the MAGAts a built-in excuse to keep voting for Trump.
“Okay, sure, Trump made a mistake, but he thought he was acting legally, and he did it to Save America™! Are we really going to punish him for a mistake?”
Let’s try to keep the issues distinct. The are two. 1) did he think he won the election (it was stolen) and 2) did he think his scheme outlined in the Indictment was legal? The first is clearly a red herring. The second depends on the mens rea requirements of the statutes (which sometimes is clarified by case law).
I suppose it’s possible there is overlap. For example, if he thought he really won Georgia, than asking for additional efforts to establish that (“find votes”) would be legal. You would really have to stretch and spin to get there though. Espeically when the Georgia officials (and his own DOJ) were telling him there was no fraud in Georgia.