Even if Trump has convinced himself he won the 2020 election, intentional ignorance of verified facts isn’t and must not be a viable legal defence.
“You’re too honest!” then-US president Donald Trump thundered at his vice president on January 1, 2021. Mike Pence had just flatly rebuffed demands that he abuse his ceremonial role in Congress on January 6 to unlawfully reject certified votes and, as he recently explained, “essentially overturn the election” of Joe Biden.
That stunning quote leaps out of the August 1 indictment by special prosecutor Jack Smith charging Mr Trump with a failed conspiracy against the US constitutional system.
Mr Trump and six unnamed (though easily identified) and as-yet unindicted co-conspirators stand accused of a complex multi-stage plot to keep him in power despite his election defeat. The indictment outlines four charges: two related to a broad conspiracy to defraud the US through numerous schemes to undo the election; attempting to disrupt the official proceeding in Congress on January 6 to confirm the results; and conspiring to defraud citizens of their voting rights by overturning that outcome.
The indictment suggests a mountain of additional and underlying evidence. It is summarised in a key sentence: “The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.”
When he was arraigned in court in Washington on Thursday, Mr Trump appeared more subdued than ever. He is reportedly angered and alarmed in private, although aggressively defiant and energetically fundraising from the new charges in public. He already faces criminal trials for fraudulent business records in Manhattan and stealing government documents in Florida.
The Trump camp is outraged that these once-unthinkable charges of a presidential effort to destroy the US constitutional order for personal political benefits have been brought in Washington, a notably liberal, overwhelmingly Democratic, 44 percent African-American, and distinctly Trump-unfriendly city.
Mr Smith was plainly thinking ahead. He filed the documents case in the Trump-friendly federal district of southern Florida, because, he explained to upset liberals, the alleged offences had occurred there. Neither side objected, despite the obvious advantage that gave to Mr Trump. The same logic now leads squarely to the new, and far more consequential, charges being filed in Washington where, again, the alleged offences took place.
Mr Trump’s attorneys will undoubtedly demand a change of venue, but Mr Smith may have outmanoeuvred them already, using the Florida documents case to secure a Washington venue for the coup plot trial.
There’s an additional symmetry. Federal judges are randomly assigned from pools in given districts. In the documents case, Mr Trump again drew one of his own nominees, the inexperienced but highly conservative Aileen Cannon. Many liberals feared that she would again issue bewildering rulings in his favour, though she hasn’t repeated her earlier biases yet.
Now Trump supporters are fuming that Tanya Chutkan – a highly experienced liberal judge and black female Jamaican immigrant (some might call that Mr Trump’s worst nightmare) – will preside over his Washington trial. A Barack Obama nominee, she has already handed down stiff sentences against January 6 insurrectionists.
It makes little sense to approve of Judge Cannon and a Florida venue in one case and object to Judge Chutkan and a Washington venue in another, when precisely the same logic and processes produced both results.
By shrewdly charging Mr Trump alone, Mr Smith has acted on the national imperative of holding the trial before the 2024 presidential election, with Mr Trump overwhelmingly favoured to be the Republican nominee. Voters have every right to observe this unprecedented trial of a former president who allegedly sought to overturn the constitutional system to remain in power, and learn the outcome, before deciding Mr Trump’s political fate.
Conversely, Mr Trump will certainly seek to delay proceedings as much as possible. With additional defendants, there would be little chance it could proceed rapidly. But with just one man on trial, if Judge Chutkan and Mr Smith both believe the public interest demands an outcome before the election, that could and should happen.
As with most non-violent white-collar cases, conviction might, but shouldn’t, hinge on Mr Trump’s state of mind at the time. His lawyers have signalled that their defence will centre on assertions he sincerely believed the election was stolen from him and was acting in good faith.
This defence is much weaker than many experts surmise.
There is ample evidence that Mr Trump privately understood that he lost. But even if he ultimately somehow managed to convince himself that he won, US law does not allow wilful ignorance to eliminate criminal intent.
His former attorney general, William Barr, has described how Mr Trump dismissed verified facts from his own officials, and sought any argument, no matter how outlandish, that the election was stolen. He privately described allegations by “co-conspirator 3”, attorney Sidney Powell, as sounding “crazy”, but promoted her crackpot theories in public.
US law provides a potent rebuttal to such a defence. If a defendant wilfully avoided learning of a fact, or deliberately convinced himself of an obvious falsehood despite known facts, criminal intent can be inferred.
His supporters filed more than 60 lawsuits challenging the election. All failed miserably. As “co-conspirator 1”, attorney Rudolph Giuliani, told an Arizona official: “We’ve got lots of theories. We just don’t have the evidence.” They didn’t and never will.
Mr Trump will also argue he was merely following the advice of lawyers (many of the unnamed co-conspirators). In fact, he rejected the advice of almost all legal officials within his administration and campaign attorneys to accept defeat, instead embracing the few who told him what he wanted to hear.
Mr Trump realised he lost. Even if he eventually convinced himself he won, intentional ignorance of objectively verified and known facts isn’t a viable defence. No belief justifies conspiracies to defraud the US, deprive citizens of voting rights, or obstruct an official proceeding. If prosecutors can show he did those things, even a good faith belief that the election was stolen can’t excuse them.
The whole saga is perfectly encapsulated in Mr Trump’s telling outburst at Mr Pence: “You’re too honest!” Too honest for what? Unfortunately for Mr Trump, this inescapable question answers itself.