Legal scholars have entertained the argument that defeated former president Donald Trump can avoid prosecution for his attempt to overthrow the 2020 election on the grounds that he was so nuts that he believed his own election lies. But that argument can go only so far.
Plus, as constitutional scholar Laurence H. Tribe tells me, it certainly cannot be the case that someone who seeks to obstruct a congressional vote count (e.g., strong-arming his own vice president) is excused from criminal liability simply because he’s “genuinely convinced that Congress will get it wrong.” You do not get to arm-twist officials or send the mob to the Capitol because you really, really think you won.
Your motive may be “I am convinced I won,” but criminal intent is satisfied since “no matter what you believe, you cannot tell the secretary of state of Georgia to just ‘find 11,780 votes’ that do not actually exist to give you one more vote than your opponent secured,” Norman Eisen, former impeachment counsel, tweeted.
It’s hard to argue that the man who made 30,000 false claims during his presidency and settled lawsuits claiming Trump University was fraudulent is out of his mind; more likely, he is a determined snake-oil salesman. But let’s say you are an overly cautious attorney general and are worried that a juror might find reasonable doubt about Trump’s intent. Well, the Jan. 6 committee presented two clear-cut legal theories under which Trump could be prosecuted that avoid the “he believed his own election fraud nonsense” argument.
First, there is substantial evidence that Trump pulled off yet another scam following the election. Rep. Zoe Lofgren (D-Calif.) presented evidence from the committee’s staff that the Trump campaign solicited donations for the “Official Election Defense Fund,” which the committee found did not exist. “It’s clear that he intentionally misled his donors, asked them to donate to a fund that didn’t exist and used the money raised for something other than what he said,” Lofgren said after the hearing. Trump raised upward of $250 million, the committee reported.
Prosecutors could examine wire fraud under the federal criminal code, which states that anyone who devises “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises … shall be fined under this title or imprisoned not more than 20 years, or both.” If Trump’s campaign sought donations for a legal fund when no such entity existed and sent out numerous solicitations every day, even after all election litigation had ended, he might be in trouble. Prosecutors would need to look at the exact wording of solicitations to make certain that a reasonable person would have believed there was an actual fund to pay for litigation.
The only intent required would be Trump’s understanding that litigation had ended and that a legal fund was nothing more than a lure to dupe money from his supporters. Prosecutors would not have to demonstrate whether he knew that he lost the election or deliberately tried to avoid knowing the facts.
The other criminal case that could neatly sidestep the intent issue involves Trump’s effort to induce Georgia Secretary of State Brad Raffensperger to “find” just enough votes to flip the state’s election — even after Trump was repeatedly told there was no evidence of fraud. Here we have Trump on tape not merely asking for an inquiry but producing a specific number of votes needed.
As a group of legal gurus explain in a comprehensive report from the Brookings Institution, “Trump’s attempt to overturn the Georgia result was not limited to one call. He also personally contacted other officials in Georgia — including the governor and the secretary of state’s chief investigator, Frances Watson — seeking their help in reversing his loss.” The report suggests a list of potential lines of prosecution, including solicitation to commit election fraud, conspiracy to commit election fraud and intentional interference of the performance of election duties. State prosecutors could also consider pursuing Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act.
Eisen, one of the authors of the Brookings report and former co-counsel for the House Judiciary Committee during Trump’s first impeachment, told me after Monday’s hearing that “the beauty of the Georgia case is that it doesn’t matter” if you believe he “lost his mind or intended to defraud” voters. If he thought he won the election, Trump knew his desired Georgia votes didn’t exist, and he had no authority to browbeat election officials to invent them.
The Jan. 6 committee is making a convincing case that not even Trump’s closest allies believed his “big lie” and that he pursued illegal schemes to remain in power regardless. That’s a political indictment of Republican officials who have played along with his election schemes despite knowing there was no evidence to support his claims.
But in criminal law, you don’t need to bring every possible case; you only need to bring the simplest and most convincing case — especially when you are going after a former president of the United States. The committee pointed to two such avenues for prosecutors.