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Opinion Trump could end up getting away with all of it

Former President Donald Trump. (Joe Raedle/Getty Images)

When Donald Trump pressed numerous government actors for weeks to abuse their official duty by helping him overturn the 2020 election — and then tried to intimidate his vice president into disrupting its formal conclusion — was Trump dimly aware he was seeking to reverse a legitimate loss?

And did Trump have a glimmer of recognition that he might be violating the law?

These questions have emerged as pivotal ones. Their answer could help determine whether Trump ever faces accountability for his extraordinarily corrupt effort to disrupt the peaceful transfer of power to remain in office illegitimately.

The legal significance of these matters just received an excellent new treatment from Charlie Savage of the New York Times. It answers some questions, but it raises other ones — about what it would take to prosecute Trump, and what it would say about our system if he skates.

This week, a federal judge found in a separate ongoing lawsuit that Trump “more likely than not” committed criminal obstruction of an official proceeding by seeking to disrupt the congressional count of presidential electors. Trump relentlessly pressured Mike Pence to delay the count, relying on a wildly wrong legal theory about U.S. history and the Constitution.

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Yet this doesn’t mean Trump will face prosecution. That’s because the relevant statute says Trump must have sought to obstruct the official proceeding “corruptly.” As Savage writes:

But what that means is not detailed in the statute, and the Supreme Court has not definitively offered an answer, raising risks and complications for prosecutors evaluating a potential case.

How, then, to prove Trump tried to obstruct the official proceeding “corruptly?”

Savage notes that prosecutors might have to prove Trump “knew for certain” that Pence had no lawful basis to delay the count, or that Trump had “some reason to believe” this, yet pressured him to do so anyway.

But this might be hard to prove. While some officials told Trump there was no legitimate basis for Pence to subvert the electoral count, coup memo author John Eastman was telling him this would be grounded in a controversial but legitimate constitutional interpretation.

As Savage notes, prosecutors might have to prove “beyond a reasonable doubt” that Trump understood otherwise, or that he had good reason to. That might indeed be challenging.

But it leaves another question unanswered: Putting aside whatever Trump “believed” about Pence’s procedural role, what if Trump pressured him to disrupt the electoral count despite fully understanding he had legitimately lost the election?

Would that constitute an effort to disrupt the electoral count “corruptly?” After all, there is extensive evidence that Trump did understand his loss was procedurally sound.

First, top Justice Department officials told him so. The House committee examining Jan. 6 has thoroughly demonstrated that even as Trump pressed them to use their official stature to manufacture the impression of widespread election fraud, they told him this was baseless. In short, they told him the truth about his loss after they carried out his directive to investigate the matter.

Second, some of Trump’s own campaign advisers told him the same thing, as a detailed timeline compiled by William Saletan shows. In certain cases reporting indicates he appeared to admit as much privately.

Third, Trump telegraphed in all kinds of ways before the election that he would rely on delays in the count of mail votes to declare victory prematurely, for the express purpose of declaring uncounted votes illegitimate and winning that way.

In other words, Trump told us he would do this before the votes were even cast, leaving no doubt that the actual status of the legitimacy of the voting would be irrelevant: He would declare it fraudulent no matter what. And so he did end up doing.

So does pressuring Pence to disrupt the electoral count on that basis constitute trying to obstruct that official proceeding “corruptly?” There might be reasonable grounds for trying to make this argument.

Matthew Seligman, a legal scholar and expert on electoral count procedures, notes that in similar contexts, the courts have defined “corruptly” to mean “dishonestly” trying to subvert the integrity of official processes without having any legitimate basis for doing so.

“That’s exactly what Trump was doing,” Seligman told me. “He was trying to use conspiracy theories about election fraud as a basis to try to undermine the results of the electoral count. That is intent to subvert the integrity of an official proceeding.”

Former federal prosecutor Barbara McQuade agrees. In a memo urging prosecution of Trump, McQuade argues that the threshold for showing Trump acted “corruptly” is demonstrating that he “knew that there was no election fraud.” This would show his effort to obstruct the electoral count was for an “improper purpose,” and therefore “corrupt.”

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Of course, what matters most here is what the Justice Department decides is necessary to demonstrate about Trump. But it should be easier to show that Trump knew he’d lost the election than to demonstrate he understood the intricacies of Pence’s constitutional role.

Can Trump really get away with trying to sabotage a legitimately elected government from taking power by simply claiming he really believed he had won the election despite having overwhelming reason to know otherwise?

If so, that’s how he gets away with it all. And wouldn’t that open the door to this fig leaf excuse being wielded with abandon to subvert elections in the future?

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