As new questions swirled last week about potential criminal risk for seeking to overturn former President Donald Trump’s 2020 election, Trump issued a 12-page statement.
It contained his usual mix of outlandish claims, exaggerations and outright lies, but also something that Trump aides and legal experts said was remarkable and different: the start of a legal defense.
On nearly every page, Trump offered an explanation of why he believed the 2020 election was stolen from him and why it was within his rights to challenge the results available in any way.
What happened at the Capitol on January 6, 2021, Trump wrote, stemmed from an attempt by Americans to “hold their elected officials accountable for obvious signs of criminal activity throughout the election.”
His statement, while unfounded, held a special significance, with intense attention given to whether he could face criminal charges. If the Justice Department were to bring a case against him, prosecutors would be faced with the challenge of showing that he knew – or should have known – that his position was based on claims about widespread election fraud that were false or that Congress His attempt to block the result was invalid.
As a potential defense, the strategy suggested by Trump’s statement is far from guaranteed against prosecution, and it presents clear problems of credibility. Trump has a long history of saying whatever suits his objectives, regardless of the truth. And some of the actions he took after the 2020 election, such as pressuring officials in Georgia to flip enough votes to swing results in that state in his column, are trying to seize power rather than address some of the wider perceived vulnerability. Talk about a determined effort for. electoral system.
But his constant stream of lies exposes some of the complexities of pursuing any criminal case against him, no matter how well-founded the important facts are at this point.
And the statement also reflected what Trump is taking behind the scenes to form a new legal team to deal with an array of investigations, including his pressing campaign to change the outcome of the election in Georgia and his departure. This includes carrying classified documents with them. The Office.
Evan Corcoran, a white-collar defense attorney and former federal prosecutor brought in by Trump, was involved in drafting the document, according to two people with information on the case. Corcoran has also represented Steve Bannon, a Trump aide who has been accused by the Justice Department of refusing to cooperate with the House committee investigating the January 6 attack.
Corcoran and Trump spokespeople did not respond to a request for comment.
The statement came during a week in which a House committee hearing highlighted Trump’s potential criminal and civil legal risk on testimony from his aides and advisers, what he was told, and when, the validity and validity of his election fraud claims. was told about. His strategy to capture power.
In its third hearing on Thursday, the committee made a case that Trump went ahead with a plan to unilaterally reverse the 2020 election to Vice President Mike Pence, even though Trump was told it had no legal basis.
The Justice Department is investigating multiple elements of the Capitol riot and a widespread attempt by Trump and his allies to keep the White House despite Joe Biden’s victory. Attorney General Merrick Garland has given no public indication that the department is building a case against Trump, who has long argued that the investigation into the January 6 attack is biased and baseless and whose side of the story has not been presented to a House committee. has been done. the hearing
But the panel’s investigation has already produced evidence that could increase pressure on Garland to proceed more aggressively, a course of action that would have extraordinary legal and political implications. Following incitement from the Justice Department, the House committee indicated in recent days that it would begin sharing some tapes of interviews with federal prosecutors with federal prosecutors as early as next month.
In a civil case related to the committee’s work, a federal judge concluded in March that Trump and an attorney who advised him, John Eastman, had committed felonies in their attempt to reverse the election. “The illegality of the plan was clear,” concluded US District Court Judge David O. Carter for the Central District of California in that case.
Carter cited two crimes that he said two men were likely guilty of: conspiracy to defraud the United States and obstructing congressional proceedings. House committee members have made similar suggestions, and some lawyers have argued that Trump may also be vulnerable to a charge of seditious conspiracy.
But successfully prosecuting the potential charges suggested by Carter and others may depend on establishing Trump’s intent — an issue that his statement last week addresses with the argument that he believes the consequences His challenges to the U.S. were based on legitimate questions about conduct. Election.
White-collar defense attorney and former federal prosecutor Daniel L. Zelenko said that of all possible crimes being looked into in relation to Trump’s conduct, the Justice Department would need to show that he intended to commit a crime. Zelenko said the new details revealed by the committee will help prosecutors prove intent, with the government still to overcome several other issues in the making of any prosecution.
Zelenko, co-chair of the white-collar defense practice at Crowell & Moring, said “Key has contemporary evidence saying he knew the election was not stolen, but tried to stay in power nonetheless.” ” “The problem with Trump is that you have to try and get into his mind, and he has such a history of lying and propagating lies that it makes it difficult to determine what he really believes.”
Duke University law professor and former federal prosecutor Samuel W. Buell said any criminal case against Trump would have to begin with establishing that he knew what he was doing was unfair.
“You need to show that he knew what he was doing was wrong and had no legal basis,” he said. “I’m not saying he has to think: What I’m doing is a crime. It’s proving: I know I have no legal argument, I know I lost the election, But I am proceeding with a false claim and a scheme which has no legal basis.
The House Committee hearing is not a trial. The panel is free to choose what testimony it uses to build the case against Trump, and the former president has no aide on the committee who can interrogate witnesses or provide them with useful information.
But the hearing has uncovered a series of witnesses who said Trump had been told directly and repeatedly before January 6 that there was no basis for his claims that election fraud had re-elected him.
And the committee presented brief but potentially important testimony from Pence’s lead attorney, Greg Jacob. In a statement, Jacob told the panel that Trump was told by Eastman on January 4, 2021—who was pushing for a plan to delay certification of the Pence Block or Electoral College Counts—that the plan was part of the Electoral Counts Act. would violate the federal law governing the process.
If the Justice Department could not establish direct evidence of what Trump knew, prosecutors would have to turn to circumstantial evidence. To do this, they would usually rely on whether the experts around him and those in authority were telling him whether the election was in fact stolen or what kind of strategy would be legal to fight the outcome.
Lawyers said expert advice is often enough to show a jury what a defendant knows. But it may be more difficult with Trump because he has such a long history of disregarding experts and his own allies, he said.
Given the challenge of showing what Trump really knew, there is another way prosecutors can show he had a corrupt intention: proving what is often referred to as “deliberate blindness.”
Under that theory, the government would need to show that Trump believed it was highly likely that experts and his aides were telling the truth when he said the election was not stolen, but He took deliberate action to avoid knowing more. Why did they believe so?
Zelenko said he understands why many Americans watching the trial would believe that building a criminal case against the former president was a strong possibility. But he cautioned that the standard of using evidence against a defendant is higher in court, where judges almost always insist that prosecutors rely on direct testimony, witnesses can be cross-examined and prosecutors have a reasonable doubt. You need to prove your arguments beyond that.