Donald Trump’s trial for allegedly conspiring to overturn the results of the 2020 election may hinge on a long-debated aspect of the former president’s mind-set: How much, or if, he believes his own false claims.
The 45-page indictment filed Tuesday lays out the myriad ways Trump allegedly lied about mass voter fraud and tried to use those claims to get state, local and federal officials to change results to declare him the winner.
Central to special counsel Jack Smith’s case is the accusation that Trump knew his claims were lies. Evidence of a defendant’s intent is often critical to criminal prosecutions, and it may be the most crucial element of Smith’s case against Trump.
“These claims were false, and the Defendant knew they were false,” the indictment’s first page declares, staking out the boundaries of what will probably be a high-stakes legal battlefield inside Trump’s brain.
“I think the entire indictment really turns on the question of Trump’s intent,” said Robert Kelner, a veteran D.C. lawyer. “Arguably there isn’t any smoking gun evidence in the indictment regarding intent, though there is certainly circumstantial evidence. At the heart of the case is really a metaphysical question of whether it’s even possible for Donald Trump to believe that he lost the election, or lost anything else, for that matter.”
At trial, Smith “needs to show that all of the false statements Trump made about the election, which the indictment chronicles in great detail, were understood by Trump to be false, otherwise it becomes a case about political speech and First Amendment rights and that’s not where the government wants to be,” Kelner said. “There is a decades-old question about whether, in the privacy of his own office or bedroom, Donald Trump admits to things that he doesn’t admit publicly or whether even when he’s staring at himself in the bathroom mirror shaving, he’s telling himself the same lies that he tells the rest of us. I don’t think we know the answer. It may be an unanswerable question, and that’s one of the challenges facing Jack Smith.”
Trump is due in court Thursday afternoon for his initial appearance on the new indictment, his third in three months. Separately, he faces state charges of falsifying business records in New York, and Smith’s team is prosecuting him in Florida on charges of illegally retaining classified documents after leaving the White House and obstructing government efforts to get them back.
The former president is also the early front-runner for the Republican 2024 presidential nomination, and a D.C. judge will soon have to find room for another criminal trial on Trump’s calendar, increasingly filled with campaign and court appearances.
An indictment is only a partial list of all the evidence prosecutors have gathered, and it’s possible that Smith, aiming to protect witnesses or simply as a legal strategy, has not yet revealed key evidence pointing to Trump’s understanding that he’d lost.
But Tuesday’s indictment lays out instances in which Trump appears to acknowledge privately that he had lost the election and there was no legal way to change that.
On New Year’s Day 2021, the indictment says, Trump spoke to Vice President Mike Pence, who told him that even though the vice president formally oversees the certification of the election results on Jan. 6, Pence did not have the authority to use that ceremonial role to overturn the election. “You’re too honest,” Trump allegedly replied.
Two days later, according to the indictment, Trump held a meeting with the chairman of the Joint Chiefs of Staff to discuss an issue overseas. During that session, Trump appeared to concede that, with time running out in his presidency, the issue would have to be dealt with by his successor, the filing says. “Yeah, you’re right, it’s too late for us,” Trump allegedly said. “We’re going to give that to the next guy.”
The indictment also charges that Trump privately described some of lawyer Sidney Powell’s theories about voting-machine hacks as “crazy,” even as he publicly promoted them.
Jim Walden, a former federal prosecutor now in private practice in New York, agreed that intent is key to much — but not all — of the criminal case against Trump, and said that poses some risks for the prosecutors. “Sometimes people have an incredible capacity to believe their own nonsense,” Walden said.
But Walden said the final charge in the indictment doesn’t require the same kind of evidence of Trump’s understanding of the truth as the first three, which accuse Trump of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, and obstruction and attempted obstruction of an official proceeding. The fourth count is a simpler accusation: that Trump conspired against people’s right to have their votes counted.
“The fourth charge is Jack Smith’s insurance policy,” Walden said, in the event that some jurors are uncomfortable with the notion that they might be convicting the former president over an opinion or belief, rather than a statement of fact.
A Trump spokesman did not respond to a request for comment. A spokesman for Smith declined to comment.
The indictment also refers to six unindicted co-conspirators — most of them identifiable through previously reported facts about the events of late 2020 and early 2021. That adds to the pressure on those people to cooperate with investigators and provide evidence or face the prospect of being charged criminally, but it’s not clear that such pressure will succeed.
Within hours of the indictment’s unsealing, Trump’s legal team signaled that his defense will be based in part on the argument that he genuinely believed the election was stolen, and rejected arguments made by those who tried to convince him otherwise.
“I would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations were false,” Trump lawyer John Lauro told Fox News.
Multiple witnesses have said they were asked by prosecutors in front of the grand jury if they heard Trump say he lost — and what evidence he was shown about the election, said people familiar with the questioning, who spoke on the condition of anonymity to discuss closed proceedings.
Some of the witnesses were asked about particular pieces of evidence — including reports from state officials, and reports commissioned by the campaign — and whether those reports were shown to Trump or his advisers, including Rudy Giuliani, a key figure in that time period who is identified only as “Co-Conspirator 1” in the indictment.
At least one witness testified that Trump was provided extensive evidence showing the election was not stolen, but Trump never conceded the point, the people said.
“Even in private, he’d argue and say that it was,” one Trump adviser said Wednesday. “You could give him 100 reasons why it wasn’t stolen, and he’d come up with something else. It was like playing whack-a-mole.”
Among Trump’s advisers, four of them said Tuesday and Wednesday that they viewed this case as easier to defend than the classified documents case. That Florida indictment cites a recording of Trump saying he knew he had possession of still-secret documents, and that he could not declassify them now that he was no longer president.
By comparison, these advisers said, the evidence in the election interference indictment is not as damning. “There was no tape, no crazy big reveal,” one of these people said.
People close to Trump insist that, to this day, he believes the voter fraud claims.
In conversations with eight current and former advisers on Wednesday, including some who have soured on Trump, none said they heard him privately contradict his claims that the election was stolen in the months after the election. All eight of them, speaking on the condition of anonymity to discuss private conversations, said they believed at the time, and still do, that Trump had convinced himself that he won.
“He is going to keep saying the election was rigged and stolen because he believes it,” one adviser said. “They are never going to get him to say he was lying, because he still believes it.”
Lack of strong evidence of intent doesn’t necessarily amount to a get-out-of-jail-free card, and a jury might still convict Trump if the jurors are convinced that he clearly engaged in criminal conduct.
So far in the Jan. 6 prosecutions of rioters, judges and jurors have shown little sympathy for defendants who claim to have been acting in good faith, or for the perceived good of the country.
In one recent case involving a man who repeatedly declared during trial that he still believed the election was stolen, a federal judge ruled that it was irrelevant whether that belief was sincere if he knew he was using illegal means to disrupt congressional certification of the vote.
But questions about Trump’s intent, and the free speech rights of politicians, even if they use those rights to lie to the public, could become a more potent issue for appeals courts.
Rachel Weiner contributed to this report.