Could prosecutors convince a jury that Trump knew he lost in 2020?

The crackle kept rolling – maybe China was the happiest, maybe Russia (of course), maybe Iran. But the reality was already there, floating around the room seemingly unnoticed by the president who had worked so hard to deny it and by observers who understood it only as a statement of fact.

This comment, however, may be important in a few months in a very different context. Does this prove beyond a reasonable doubt that Trump knew his false claims about the election were false? Will the confession he lost ever convince a jury that the President of the United States committed a crime?

No jury can ever be asked that question. It’s unclear where the investigation into the Jan. 6, 2021, Capitol riot will lead, whether the House Select Committee investigation or a separate Justice Department investigation will result in a federal charge. There are also civil lawsuits, in which the judges have already raised this same point: Did Trump know?

Trump has worked very hard to demonstrate that he doesn’t really think he’s lost. In the early hours after the polls closed on November 3, 2020, he claimed the election was taken away from him, insisting in the middle of the night that he had finally won. Then, as is well established, he spent months repeating the same claim with a rotating cast of evidence: he won, the election was stolen, the world would see soon enough.

His reasons for doing so are not primarily legal. It is useful for him to have his basis for thinking that the election was stolen; the post-election period has been very lucrative for Trump, which would not be the case if he had simply acknowledged the reality of his situation. It’s also helpful for his vanity that he convinces himself that he didn’t really lose.

But this model can nevertheless be a central element of a criminal defense. As I noted when the select committee first argued that Trump had broken the law by trying to nullify the election, his culpability in setting up the conditions under which the Capitol riot unfolded unfolded largely depends on whether he thought the election was really had Been robbed. If he called on people to come to Washington and lobby Congress because he sincerely believed that American democracy had been disrupted, that might convince jurors or a judge that he did not act with a corrupt intent. Put simply, it’s a bit like the difference between finding a $20 bill on the floor and picking one up from a cash register.

So these glimmers in which he recognizes reality seem important. When he admitted in an interview last year that ‘we didn’t win’ – quickly qualifying his comment as ‘we’ll see what happens’. Or when he said last December that the wall on the border with Mexico would have been finished “if we had won the elections”. These flashes of reality.

It’s probably not enough. There were other flashes elsewhere, of course, even before the riot. In a fascinating article published the day before the riot – titled ‘Trump privately admits it’s over, but wants to fight for attention’ – confidential sources told Politico that Trump was “disappointed that we have lost”. Other sources, however, said that Trump “accepts [the election results], but he does not believe them. Even in the White House, there was apparent uncertainty about Trump’s state of mind.

Alyssa Farah, who worked for Trump in the weeks after the election, suggested in an interview last year that Trump knew he had lost…until he was convinced otherwise.

“He knew. He told me shortly after that he knew he had lost,” she said. “But then, you know, people got around him, they got information in front of him and I think his mind could have really changed about that and it’s scary because he lost.”

Although unflattering, it is also a generous interpretation. trump definitely wanted to to think he didn’t lose and was probably very receptive to such assertions. Perhaps he managed to convince himself that there were real questions. That’s the argument his lawyer John Eastman made in rejecting an argument that he and Trump conspired to break the law (and, therefore, that his communications with Trump should be covered by solicitor-client privilege). ): Trump heard from many people that the election has been stolen, information he compared to advisers telling him that was not the case.

What this ignores, of course, is that Trump has spent months claiming that the election would like being stolen, claims for which there was no evidence. He repeatedly said mail-in ballots were suspect when there was no reason to assume they would be, and he and his team made outlandish claims about random incidents to bolster that. skepticism. There has been no evidence of substantial fraud since the election, but Trump was making the same claims about fraud even before she did, proof that the point was casting doubt, failing to reveal the truth.

Eastman’s effort to block investigators from seeing his communication with Trump was dismissed by U.S. District Judge David O. Carter because Carter felt it was likely that Trump had violated federal law by enabling the Jan. 6 riot. To bolster his argument, Carter pointed to a very specific incident as revealing that Trump knew full well that he did not intend to right a historic wrong (to reject a fraud-tainted election) but, instead, to retain power illegally.

On January 2, 2021, Trump called Georgian Secretary of State Brad Raffensperger and pressured him to treat the results in his state as uncertain or invalid. He presented a number of unsubstantiated, trivial or both allegations of fraud. In the end, however, he simply asked Raffensperger to find enough votes to give him the win.

“So, what are we going to do here, friends?” Trump asked at one point. “I only need 11,000 votes. Guys, I need 11,000 votes. Leave me alone.”

This does not prove that Trump knew he had lost, but it does strongly suggest that he aimed to wield power without obeying the law. He just wanted Raffensperger to say that some 11,000 votes had been found, one way or another, and Trump had won. It’s not that Trump thought there were specifically that number of fraudulent votes at issue, it’s that he needed those votes to hold power. To extend the analogy above, it’s like trying to convince a store clerk that you paid with $50 instead of $20 and, when that doesn’t work, just asking for $20 anyway.

A jury or judge may never assess this issue to judge Trump’s guilt in his attempt to overturn the election. But it’s an interesting question that still deserves to be evaluated: could you to prove Trump’s intention to amplify misrepresentations about the election? There’s little to no reason to give Trump the benefit of the doubt, but that’s beside the point.

“Who can see into a man’s heart and know his thoughts?” says the Bible. “Only the spirit that dwells in man.”

Of course, the fact that the man sometimes admits his thoughts and makes it clear that he doesn’t stand by much of what he says offers some clues.


Washington

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