All four charges laid out in the second federal indictment of former President Donald Trump center around the idea that Trump tried to steal the 2020 election. Hence, some people incorrectly believe that part of the prosecution’s job will be showing that Trump understood that he was the one trying to steal the election, and not that it was stolen from him. Those people are mistaken. Special counsel Jack Smith can convict Trump on all charges — corruptly obstructing and conspiring to corrupt an official proceeding, conspiring to defraud the government, and conspiring to violate civil rights — without ever showing that Trump knew he had lost the 2020 election.
Yes, Smith did spill a good deal of ink including allegations that, if proven, would demonstrate that Trump was well aware that Biden had defeated him, and that his statements to the contrary were knowing lies. But those allegations merely help Smith tell us, and eventually a jury, a consistent story. They fill in the narrative contours of the facts alleged in the indictment. They aren’t necessary for his success.
To be clear, Smith must still prove that Trump acted with criminal intent. But that requires something different than proving Trump knew he’d lost the election.
Let’s paint a picture. The sun rises on a beautiful day in Anytown, U.S.A. You attend your town’s annual parade for “Presidents Who Have Not Been Indicted.” While there, a pickpocket takes $100 from your wallet. You are completely convinced that the perpetrator is your neighbor, who was standing beside you for the entirety of the parade. As the sun sets on the day, you hatch a plan to get your money back. You break into your neighbor’s home, rummage through her purse, and take $100. Even though you absolutely believe she was the one who took your money, you have just engaged in robbery.
The same holds true for Trump and his (alleged) efforts to firebomb our democracy. Smith alleges in the indictment that Trump illegally: (1) pressured state election officials to declare that Trump won the states they represent (even though he did not); (2) attempted to send “fake electors” to vote in the Electoral College (even though they had no power to vote); (3) tried to get members of the Justice Department to endorse the idea that there was election fraud (even though there was not); (4) sought to get then-Vice President Mike Pence to refuse to certify the Electoral College votes (even though he had no constitutional authority to do so); and (5) supported an angry mob who attempted to prevent the certification of the Electoral College.
If Smith can prove that Trump did in fact undertake each of those actions, it doesn’t matter whether Trump believed the election was stolen from him, or that he was the one stealing the election. It is legally immaterial.
To be clear, Smith must still prove that Trump acted with criminal intent. But that requires something different than proving Trump knew he’d lost the election. For instance, with respect to Trump’s pressure campaign on Pence, prosecutors need to show that Trump knew Pence had no authority to ignore his constitutional duties and refuse to certify the Electoral College vote. Similarly, with respect to the alleged “fake electors” scheme, prosecutors must show Trump knew these people lacked the legal authority to submit their votes on Jan. 6, 2021. If you think an election is stolen, you file a lawsuit (which Trump did). You don’t also tell people to submit false forms.
There is no doubt that there is some initial appeal to the idea that if Trump, who can evince a remarkable capacity for self-delusion, really believed the election was stolen from him, then he was just attempting to take what was rightfully his. Under this theory, prosecutors would have to show that Trump knew full well that he had failed to win enough votes to be re-elected. Similarly, there is an allure to the fact that prosecutors will soon point a jury to reams of evidence that Trump was repeatedly told, and indeed understood, that he had lost the 2020 presidential election. This will no doubt help them to convince a jury that Trump is a pathological liar.
But this is not what the law requires. Strange as it may seem, why Trump allegedly committed these crimes is beside the point. Trump can be convicted for attempting to steal the election even if he delusionally believed it was stolen from him. Smith needs to prove to a jury what Trump did — and the evidence is piled sky high.
