If indicted for actions around January 6, it seems likely that Trump’s team would use the defense of “Trump held a genuine belief that the election was stolen.” Somehow, this would make up for all of the chaos that ensued.
To make this argument stick, wouldn’t Trump himself have to testify? ISTM that anyone stating in court what Trump believed would either be conjecture or hearsay. If that’s the case, wouldn’t putting Trump on the stand be necessary to promote the theory? I believe that it is somewhat rare for defendants to on their own behalf and with Trump, it’s hard to imagine that the best and brightest prosecutors at the DOJ couldn’t lead him somewhere that he didn’t want to go.
Please don’t fight the hypothetical of the Trump indictment. For the purpose of the thread, assume that it has happened.
Why would we expect more than him taking the fifth as any good lawyer would recommend? Or claiming that he is covered under executive privilege and have it taken to the Supreme Court, which is what he would prefer.
They are never going to be able to put the screws to this guy on the stand. They have to prove the case against him without his testimony, that’s why they are carefully building a case against him so that they don’t need his testimony.
My question is, how do you promote what his sincerely held belief is without his testimony? You’d need some kind of evidence for that, I’d think. And like I said, anything not coming from him would be hearsay or conjecture and wouldn’t be allowed in court.
No, the prosecution cannot compel him to testify against himself, even under the guise of helping him prove his belief. What they need to show is that he had ample opportunity to show that he did not win the election through numerous court filings and his own advisors telling him so.
Yes, that is the case they are building. That a reasonable person should have known that they lost the election and that his actions claiming that he won did not justify him trying to commit treason by inciting an armed mob to march on the Capitol where the election was being certified.
If Trump believed the election was stolen, or even if the election was in fact stolen, his actions are just as illegal. There is not defense based on “Trump held a genuine belief that the election was stolen.” There are things you can do if you learn the election was “rigged.” You can ask for a recount, you can file lawsuits, you can call for an investigation. Those things can be justified by a sincere belief you are correct. You cannot, however, try to prevent by force the Congressional counting of votes. You cannot encourage people to send in fraudulent claims that they are the true electors of a state when they’re not.
In theory, you could bring in 10 people who can testify “we explained to the President that the election was stolen.” That’s not hearsay, because it’s being introduced to prove what was said, not the truth of the matter asserted. That would raise a permissible inference that the President might have formed a belief based what all these people were saying. In the real world, however, the government would prove that others (Bill Barr for example) who had a lot more expertise and resources, were telling him the opposite and that believing the crazies was never “reasonable.”
I think it would very much depend on the specific charge. I doubt that sincerely-held belief that the election was stolen would be the defense. It would be more of “Trump was just making free-speech remarks at the Capital and whatever happened after that was the result of bad actors”.
Basically trying to attack the step between “telling a mob that the election was stolen and they should do something about it” and “the mob does something about it”. (You can replace “mob” with “fake electoral submissions” if they go after that part of it).
With a lot of executive-privilege claims to try to block testimony. And of course some wink-wink comments about how unfair the election was hoping that maybe you can get a hung jury.
ETA: And of course lots of claims that what happened wasn’t really an insurrection but just a protest and that that the fraudulent electoral sheets weren’t illegal.
This part always throws me off. Can you explain a little more how it would be used in this case please? I’ve watched a Youtube video but I’m still confused.
Some evidence is important to prove it was said, not for the content of what was said. It’s in the definition of hearsay:
“Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
So, if you’re offering it for another reason, it’s not hearsay.
Often, this comes up to prove “notice” of something. “I told the defendant his ex-wife was in the bar, and he grabbed a gun and ran in the front door.” That isn’t being offered to prove that his ex-wife was actually in the bar, but that the defendant was told that and how he behaved after hearing it.
People who don’t testify are convicted by juries every day based solely on the evidence presented by prosecutors.
In Trump’s case, if he ever goes to trial, I suspect the challenge won’t be convicting him on the evidence presented. It will be his attorneys trying to keep him from testiliefying.
It’s not a defense, though. I heard a good analogy recently:
You make a deposit at your bank and you think the bank cheated you by not crediting your account properly. In other words, you believe the bank stole your money.
Even if that belief is genuinely held, it is not a defense if you go rob the bank to retrieve what you believe was stolen from you.
If Trump is quoted as saying “I believe the election was stolen,” then yes, that’s hearsay. If he is quoted as saying “The election was stolen,” than technically not hearsay. A judge would be reluctant to admit the latter, because it’s really just a shorthand way of saying the former. Also, neither statement would be relevant, because his belief is not a defense.
The only thing more fun for a prosecutor getting to cross exam a liar is getting to cross exam an incredibly stupid liar. Unless his lawyers are completely incompetent, there is no way Trump would testify under oath at his trial.