An ‘I-believed-my-own-lies’ defense won’t work for Trump

On June 13, the House Select Committee investigating Jan. 6 heard testimony devastating to Donald Trump. It came from many former Trump allies, including former Attorney General William Barr.

Barr testified that Trump “wasn’t listening” when Barr explained that Trump’s claims of widespread voter fraud were “bullshit.” Barr said there was “no indication of interest in what the actual facts were,” and mused: “I thought, boy, if he really believes this stuff, he has, you know, lost contact with, become detached from reality.”

Some have expressed the idea that such testimony might support a credible defense for Trump to any potential criminal charges — because he was deluded enough to believe his own BS. According to this misguided theory, Trump lacked the “criminal intent” necessary for conviction because he didn’t think he was doing anything wrong.

Incorrect. The law distinguishes between refusing to accept inconvenient truth to get your way and mental disturbance sufficient to excuse illegality, between adopting strategic blindness and not knowing your facts from a hole in the ground.

Judges commonly instruct juries that “willful blindness” to facts in front of you establishes criminal intent. A drug courier handsomely paid to carry a closed package into the United States doesn’t get off the hook by saying, “I never looked inside it.”

In Trump’s case, experts most commonly mention potential criminal charges under 18 USC §§ 371 and 1512(c). They prohibit conspiring to defraud the United States and to corruptly obstruct an official proceeding. The proceeding was the constitutionally mandated Jan. 6 congressional certification of the new president’s election by the Electoral College on Dec. 14.

Under United States v. Morrison, attempting to “corruptly persuade” someone to violate the law qualifies to show criminal intent under §1512(c), and is similarly helpful under §371. That is precisely what Trump tried to do with respect to Vice President Mike Pence when Trump relentlessly pressured him to reject or delay the certification on Jan. 6, as we saw during testimony today.

The same holds true for Trump’s infamous and taped Jan. 2, 2021, phone call with Georgia Secretary of State Brad Raffensperger, during which Trump tried to persuade Raffensperger to “find 11,780 votes,” one more than needed to overturn Biden’s electoral victory in Georgia. That was aimed at defrauding the United States of fair election results at the Jan. 6 certification proceeding and soliciting a Georgia official to commit election fraud in violation of GA Code §21-2-604.

An elected official doesn’t get to strong-arm others to have them violate the law, even if he genuinely believes that pervasive voter fraud turned an election. The law condemns self-help. We have a system of courts to right wrongs.

Trump tried using the courts, of course, without success. He lost virtually every case he brought, striking out over 60 times in a row. He wasn’t then free to take the law into his own hands, even if his motivation had been pure — and there’s no evidence that it was. He simply wasn’t free to say, “I’m going to stay in power anyway.”

Bill Barr’s self-described “demoralization” about Trump’s disinterest in “actual facts” illustrates how far the former AG’s own head was stuck in the sand. For four years, Trump smothered the country in chaos and “alternate reality,” with Barr his lawyer-enabler for nearly two of those years. Trump’s indifference to facts was about as surprising as a bank robber being indifferent to the Commandment: “Thou shalt not steal.”  

A future D.C. jury is no more likely to be conned by a Trump defense of “delusional thinking” than an April D.C. jury was fooled by Jan. 6 Capitol invader Dustin Thompson’s defense that he was just “following Trump’s orders.” That jury deliberated just three hours before convicting Thompson.

As for Trump, notice how attached to reality he was on Jan. 3, 2021, when he met with Acting AG Jeffrey Rosen, Deputy AG Richard Donoghue, White House Counsel Pat Cipollone and Jeffrey Clark, Trump’s mole at the DOJ: Trump was set to replace Rosen with Clark, who, unlike Rosen, would issue the false letter Trump wanted, saying that the DOJ was investigating substantial claims of voter fraud in Georgia and elsewhere. Trump backed off when he learned that the entire Justice Department leadership, along with Cipollone, would resign. Trump recognized that naming Clark as acting AG wasn’t “worth the breakage.” That kind of calculating risks and rewards is not the trademark of someone detached from reality.

Nor was Trump delusional in the aftermath of the election when, the House select committee alleges, he scammed supporters for $250 million on behalf of an “Election Defense Fund” that didn’t exist. The money went to his political causes and reportedly paid Don Jr.’s girlfriend, Kimberly Guilfoyle, $60,000 for a two-minute speech on Jan. 6.

The only delusions that might surprise us from a lifelong practitioner of manipulation and deceit like Trump would be “delusions of candor.” 

Laurence H. Tribe is the Carl M. Loeb University Professor emeritus and a professor of constitutional law emeritus at Harvard Law School.

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.