Among the litany of excuses and defenses for Trump’s actions, the most curious challenge is the claim that Trump actually believed that he won, reality notwithstanding. Making a nostalgic visit to Volokh Conspiracy, Orin Kerr confronts the question of how Special Counsel Jack Smith can prove that Trump was not the White House Idiot.
One of the questions raised by the indictment of former President Trump in the District of Columbia, on charges involving the 2020 election aftermath, is whether the prosecution, headed by Special Counsel Jack Smith, can prove beyond a reasonable doubt that Trump knew he had lost the election. The narrative of the prosecution is that Trump knew perfectly well what he was told over and over again by his own advisors and GOP officials: He had lost. He was trying to overturn that result, the argument goes, by using political influence on others in his party to get them to declare he won, despite knowing that he lost. Meanwhile, Trump defenders say that Trump legitimately thought he won. On that view, Trump was told repeatedly that he lost, sure, but those assertions did not persuade him. On that narrative, Trump was on a quixotic but legal journey to see his rights vindicated.
One question this raises is, how might Smith try to prove Trump knew?
Initially, that’s really not the question. When it comes to proving intent, a person is presumed to intend the natural consequences of his actions. That Trump lost the election isn’t a matter to be proven so much as an established fact. The electoral college elected Biden to be president, which explains why he’s living in the White House and Trump isn’t. The presumption of regularity answers the question, and shifts the burden to Trump to prove otherwise. Neither Trump, nor his merry band of crazies, from Giuliani to Powell to co-conspirator 6 had any success doing so before and won’t again.
But for Trump to raise his sincerely held yet delusional belief that he was the winner will require Trump to take the witness stand and say so. Without raising the allegation that he refused to accept what he was told by everyone but the White House crazies and nonetheless persisted in a belief for which there was no evidence whatsoever and flew in the face of reality, Smith has nothing to disprove.
There is nothing in the case that would make Jack Smith happier than Trump taking the stand in his own defense, as that would open Trump to cross-examination. It would be glorious.
But Orin reminds us that the speaking indictment notwithstanding, we don’t know what evidence he has to blow Trump out of the water. Some of what’s already known suggests that Trump’s claim of sincerely held psychotic delusions might not be true.
In particular, there have been reports of Trump telling other people that he lost. Here are some of the more prominent examples from the public record:
- “I don’t want people to know we lost, Mark. This is embarrassing. Figure it out. We need to figure it out. I don’t want people to know that we lost.” — President Trump in December 2020, according to Cassidy Hutchinson.
- “A lot of times he’ll tell me that he lost, but he wants to keep fighting it, and he thinks that there might be enough to overturn the election.” — Trump Chief of Staff Mark Meadows, according to Cassidy Hutchinson.
- “Can you believe I lost to this guy?” — Trump while watching Biden on TV after the election, according to Alyssa Farah Griffin,
- “I’ve had a few conversations with the president where he acknowledged he’s lost. He hasn’t acknowledged that he wants to concede, but he acknowledges that he lost the election.” — Trump Director of National Intelligence John Ratcliffe, according to Cassidy Hutchinson.
- “When I didn’t win the election. . . . ” — Trump in 2021, on video, referring to how happy a foreign official was when Trump didn’t win in 2020.
Granted, the indictment does include a tiny bit of this. Perhaps the most notable is Paragraph 83’s Trump quote that “it’s too late for us. We’re going to give that to the next guy.” But there’s much less in the indictment than in the public record.
Of course, Cassidy Hutchinson’s revelation of other people’s conversations is hearsay, but then there’s the people involved in the conversations themselves who, if they’re not already cooperating are subject to subpoena. Then again, the glaring omission in the indictment of the erstwhile co-conspirator chief of staff, Mark Meadows, strongly suggests he’s flipped to Team Smith, opening up a potential treasure trove of things Trump sincerely believes, such as this had nothing to do with believing he won but with believing he could somehow scam, cheat, lie and strongarm his way through losing to save himself from the humiliation of being a pathetic loser.
Given this, it seems at least possible to me that Smith has more evidence of Trump’s state of mind than he’s letting on. He may be able to put a witness like Mark Meadows on the stand and have direct testimony of what Trump said to Meadows. It’s true that Smith didn’t signal this in the indictment. But then he didn’t have to, and I would think there are some plausible reasons (preventing witness intimidation, etc.) for why he might not want to include it.
Is this really as much of an issue as some would have it? Not really. While it seems overwhelmingly likely that Smith has ample evidence available as to things Trump said that disprove any claim of a sincere belief that unicorns changed the voting machines, it’s no more of a problem than a murder defendant claiming he killed the guy because he was a space alien. Claiming irrational and baseless beliefs does not absolve a defendant of the culpability for his actions by relieving him of any duty to act rationally in the face of overwhelming, if not conclusive, proof to the contrary.
Trump may well have wanted to believe he won, but so what? This wasn’t about demanding a recount or going to court to challenge an outcome. You don’t get to “keep believing” and then act upon it and deny that you intended the ordinary consequences of your actions. But then again, Trump didn’t believe. He just didn’t care. And like Orin, I suspect Smith will have little difficulty proving it, and the prospect of Trump being crossed would be the icing on the cake.
Bringing Trump’s reality to trial would be a massive mistake. His belief is no issue to the conspiracies–combining to do illegality is a crime, even for a holy crusade. But it might be all the defense really has because Trump pounded his belief rhetoric to the wilds.
I don’t do criminal, but since there are only conspiracy charges and seemingly a subway train load of wits to rat him out, isn’t he almost compelled to testify?
Isn’t the jury entitled to make an inference from what a reasonable person would believe to what Trump in fact did believe? So the jury could conclude that Trump didn’t believe he won because no reasonable person would believe it. I don’t see any legal bar to this inference. Am I missing something?
He would have to testify?
How many goats does a guy have to fuck before the jury thinks he’s a goat-fucker?
Never underestimate the power of unicorns.
“Nostalgic visit.” You crack me up.
Whenever a defendant took the stand a fellow AUSA would lean over to her case agent and whisper, “It’s Christmas!!” I imagine the same sentiment could be uttered here if Trump took the stand. He, like so many other defendants, thinks he’s the smartest guy in the room, when in fact he’s far from it.
Trump was the White House idiot.
The government must believe that, because their charges posit that Trump somehow or another really thought his crackpottery could overturn the election. Even though nobody fell for it and none of it worked, and none of it was ever remotely likely to work (hence, an alleged “conspiracy”). This is just a continuation of the ludicrous effort to manufacture some serious threat to the electoral system out of a bunch of idiotic posturing and obvious lies.
Would it really be an absolute defense even if the jury concluded Trump believed he won the election? If the conspiracy was to push certain discrete lies, and one of those lies was, let’s say, a hugely inflated number of dead voters appearing; and if the jury concluded that Trump held a sincere belief he won altogether, but could not have believed the dead voter number in the face of the state officials having already checked the numbers and given him the real number of dead voters, isn’t that enough to support a conviction as pleaded?