At a recent court hearing in the January 6 case, Judge Tanya Chutkan told former President Donald Trump’s counsel, John Lauro, that “your client’s defense is supposed to happen in this courtroom, not on the internet.” But that ship may have already sailed. Trump’s defenders have already flooded the media with his purported “defense” to the charges: that Trump genuinely believed he won the election, and therefore he was not acting with the requisite “corrupt intent.”
This argument has been treated with far too much credulity by the media, as well as the legal commentariat. In fact, it matters not at all whether Trump really believed he won the election.
Defense attorneys would all prefer if Lauro’s depiction of the law prevailed and that juries, before finding guilt, would be required to look into the mind of a defendant and try to discern whether he truly believed he was entitled to whatever spoils were the object of his or her criminal scheme. If that were the case, reasonable doubt would be sown into almost all cases. After all, who can say “beyond a reasonable doubt” what anyone else actually believes in their heart of hearts?
John Lauro is an experienced trial attorney and almost certainly knows better. He and the rest of the Trump team are trying to shape public opinion and the jury pool by misrepresenting the law. His efforts seem to have borne fruit, as the legal chattering class has far too frequently repeated that whether Trump actually believed he won the election will pose a significant legal impediment that the government will have to overcome at trial.
Some of this confusion is likely because the indictment repeatedly states that Trump “spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false.” The government will call multiple witnesses to back up the allegation that Trump knew that he lost the election. And establishing that Trump lied about his election loss will be important to the government’s case, because it makes Trump’s conduct in trying to overturn the election all the more venal.
But the knowing falsity of Trump’s election claims is not an element of any of the offenses, and the court will not instruct the jury that it must find, beyond a reasonable doubt, that Trump knowingly lied when he claimed that he had won the election.
This is not to diminish the government’s burden to prove intent, a requirement present in virtually all criminal cases, and that is often outcome-determinative. But proving intent simply means that the government must prove that a defendant acting knowingly and intentionally, and not by accident, mistake or inadvertence. And defendants are presumed to have intended the natural consequences of their conduct.
So, for example, if the government can prove that Trump agreed with his co-conspirators to submit “fake electors” in order to overturn the election results in anyof the alleged states, then the jury will be told that he can be found guilty. Or if a jury concludes that Trump schemed to have the Department of Justice write a letter to various state officials that “there is evidence of significant irregularities that may have impacted the outcome of the election in multiple States,” when he knew this was not the case, then the government will have proven the element of corrupt intent. This is true regardless of whether Trump really believed he won the election.
That this is the law should surprise no one. If I honestly believe my employer has wrongfully withheld a bonus owed to me, the law does not permit me to embezzle this amount to even the score. The law expects those who believe they were wronged to avail themselves of lawful means to address their harm. It does not permit self-help by, for example, submitting fraudulent slates of electors who falsely claim to have been certified in an attempt to overturn an election — even if you think you won the election fairly.
The question of what Trump actually believed is relevant to the offense and goes to the question of motive. But these personal beliefs do not constitute an element of the offense. Indeed, to the extent that Trump actually believed he won — an extremely dubious proposition if the allegations in the indictment are true — then he arguably had an even greater motive to act unlawfully.
Judge Chutkan is an experienced jurist and unlikely to be persuaded by these misleading arguments. But it is not the judge that Lauro and his team are trying to influence. Their target is a different court — that of public opinion. And their efforts there, it appears, are already bearing fruit.
Peter Zeidenberg, a partner at the law firm ArentFox Schiff, served as a deputy special counsel in the prosecution of Scooter Libby.