David Leonhardt, in The Morning report for the NY times, prefaces an op ed by conservative Trump critic, David French, in today’s paper with some thoughts of his own. I resonate with these well-balanced thoughts as an attorney. Regardless of political leanings or morality, we should understand the legal implications and appreciate the legal lay of the land.
Leonhardt cuts through the hype and the clickbait headlines. “Shocking as it was,” Leonhardt says, “Trump’s behavior on Jan. 6 did not violate any laws in obvious ways.” He didn’t actually tell anyone to riot, or to storm the Capitol, or to attack Congress. He even said at one point that “he knew the protesters would behave ‘peacefully and patriotically,’” observes Leonhardt.
Like it or not, Donald Trump says some wildly irresponsible things, but he is clever enough to know (it seems) not to cross the line. He seems to have a knack for teetering dangerously close to the lines without actually stepping over them. ( am not commending him to say that.)
Leornhardt observes that no federal law forbids anyone from trying to overturn the results of an election. The 2000 election is a case in point. Al Gore was convinced that improprieties took place in Florida, and he demanded a recount. Gore may have done that in a much more deferential, dignified and diplomatic way, but maintaining that some impropriety took place, no matter how crudely, childishly, and obnoxiously done, is not a crime.
We need to understand these things to understand the most recent indictment. Trump is not charged with a crime involving the overturning of an election, because attempts to overturn an election, by themselves, are not criminal. Freedom of speech and laws providing access to justice allow American people to make claims. Even outrageous ones.
The latest indictment focuses on falsehoods and intentions: the indictment, basically says, “These claims were false, and [Donald Trump] knew that they were false.” In other words, the indictment is based on fraud, which is knowingly making a false claim with the intention to deceive.
As an attorney, I can tell you that trying to prove what someone intended is no small task. It may seem obvious at first blush, but how do you prove intention absent an express admission by Trump that he knew the claims were false? Even Trump may not be that stupid.
We might conceive of a kind of braggadocio that includes boasting that he knew what he was saying was false, but even that might be beyond Donald Trump. At the very least, we have no public statement from Trump that he knew the claims were false.
The fact that advisors told Trump there was no basis in fact to the claims he was making doesn’t really help us if Trump didn’t believe his advisors. If Trump thought he knew better than them. Trump’s belief that the election was “stolen” was spurious and rested on the thinnest of evidence, but fraud requires more than mere belief that is contrary to the evidence.
Fraud requires actual knowledge of the falsehood of a statement and an intention to deceive. As Leonhardt puts it, “[T]here is no testimony or recording in which Trump himself acknowledges the reality of his election loss,” and this makes fraud and conspiracy charges appear to be very difficult to prove.
In my opinion, Trump is almost certain to be successful in defending these charges, unless the prosecutors have evidence of private statements made by Trump in which he acknowledges the falsehood of the statements he made, and he expresses an intention to deceive the American people. Short of that kind of evidence, this indictment may be chasing after the wind.
I am hopeful the prosecutors do have that kind of evidence. Most objective Americans believe that Trump attempted to subvert “the very foundation of democracy” knowingly (or wantonly), even if it can’t be proven.
The risk of this indictment is that Trump defends the charges successfully. We all know that a hung jury or a not guilty determination in a criminal case doesn’t mean that a crime wasn’t committed; it just means the prosecutors could not prove their case. In this case, however, failure will fuel Trump and his supporters with legal vindication, and that is dangerous.
The conservative pundit, David French, calls Trump’s actions in trying to overthrow the 2020 election “one of the most dishonest, malicious and damaging conspiracies in the history of the United States” involving “patently frivolous claims” (The Trial America Needs, NY Times, August 1, 2023) If successful, French says, “This is the case that … can once and for all strip Trump of any pretense of good faith or good will.”
But that is a big “IF!” The prosecutors must prove that Trump knew the election wasn’t “stolen”, and they must prove that Trump knowingly tried to interfere in the election process (or post-election) process by “deceit, craft or trickery”. The prosecution must prove Trump had “an intent to defraud” or an intent “to make false statements”.
We should not be quick to assume this is an easy task. If it was easy, we would all be vulnerable to criminal charges based on little but the assumptions of other people. The bar of proof is very high for very good reason!
Because these are criminal charges, the prosecution must prove Trump’s knowledge (that he knew he lost) and intention (to interfere by deceit) beyond all reasonable doubt. The prosecution must prove not only that the claims made by Trump were false; the prosecution must prove that Trump knew them to be false when he made those claims.
Think about the famous hanging chads in the 2000 election. Al Gore believed he didn’t lose the vote in Florida. He believed that improprieties in the way the votes were counted led to a false victory by George Bush, the senior. When all of the votes were counted over again, and all the hanging chads were accounted for, however, the evidence proved him wrong.
Al Gore failed attempt to overthrow the election didn’t mean that he committed a crime. It wasn’t a crime to believe he won. When Al Gore demanded the recount, he may have legitimately believed he won.
He may have honestly believed the recount would vindicate him. He may have been very confident of his belief. He may have held that belief despite evidence to the contrary. None of that makes it a crime.
Trump may have been over-the-top in his claims, belief, and confidence. He may have been extreme in his boasting about it. He may have even ignored very substantial evidence to the contrary, but, that isn’t proof that he knew his claims were false.
Trump might just be stupid. He might be naïve and delusional. He might be wildly overoptimistic or grossly overconfident in his own ability to assess reality. Those things are not criminal.
And that is the problem with this latest indictment. I am concerned that good-willed Americans will place too much hope on this indictment. I am concerned that Trump and his so far nameless “co-conspirators” will skate free of these latest charges, and that will empower him/them.
I am concerned that all the Trump hangers-on will feel vindicated in their devotion to him. I am concerned that the more fearful followers who have retreated to the shadows will be emboldened. Like some ancient god or martyred messiah, Trump may rise from the ashes stronger than he was before if he can avoid a conviction.
We may “know” that he is guilty, but the truth will no longer be important, or even relevant, if none of these charges can be proven in a court of law beyond a reasonable doubt.
Postscript:
What the federal lacks, the indictment on RICO (conspiracy) charges in Georgia may more than make up. (See This Indictment of Trump Does Something Ingenious, August 15, 2023, by Damon Winer in the NT times
Perspective 