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Former prosecutors and other experts essentially agree that proving criminal intent poses one of the biggest legal challenges to indicting former president Donald Trump for his role in the attacks on the 2020 election. Mens rea, Latin for guilty mind, is required to convict. This generally means that the offender must have acted purposely, knowingly, recklessly or negligently in committing the criminal act.
It’s tempting, in assessing Trump’s state of mind, to focus on whether he genuinely believed his assertion that the presidential election was “stolen” -- that he had beaten Joe Biden and that therefore his subsequent efforts were merely means well within his power aimed at setting things right. If you can prove that he did actually know he lost the election -- that it was not “stolen” from him -- you go a long way toward clearing that criminal-intent hurdle. Certainly, the House select committee investigating the attack on the Capitol on Jan. 6 is amassing evidence that Trump knew he had lost. Numerous Trump aides and lawyers have attested to this before the committee.
But so what. For a number of the possible crimes the committee has identified, it doesn’t matter what Trump believed about the election. Focusing on that aspect misses the true test of criminal intent.
He still had no legal right to use forged electoral certificates or to pressure election officials in Georgia to “find 11,780 votes” that did not exist, or to engage in other extralegal means to try to hold onto power. That includes pressuring the vice president to assume powers he didn’t have. State and federal criminal laws prohibit these things. Vigilante justice is against the law, even if you (wrongly) believe you are a victim.
The most recent hearings of the Jan. 6 committee provide plenty of evidence to prove that Trump and a cadre of his closest associates conspired to engage in electoral vigilantism.
First, soliciting state officials to violate their oaths of office in administering elections is a clear state crime across the country, including in Georgia. And Trump did not merely solicit Georgia Secretary of State Brad Raffensperger to “find 11,780 votes.” Raffensperger wrote in his book, “Integrity Counts,” that he considered Trump to have been making a “threat” to do him harm and expanded on that in his testimony before the committee Tuesday. Were Trump’s lawyers to say at trial, “Yes, but our client thought he had won the election,” they would be laughed out of court.
If Trump’s lawyers were to deny the solicitation and the threat, the jury could simply listen for themselves to the full audio recording of the infamous phone call that Trump made to Raffensperger on Jan. 2, 2021. It’s a smoking gun in the hands of Fulton County District Attorney Fani Willis, who has been investigating Trump’s efforts in Georgia, where a special grand jury was seated last month.
It is also immaterial what was in Trump’s head regarding the outcome of the election when he participated in the audacious scheme to falsify alternate slates of electors and get them to Congress to gum up the certification of the election. “President Trump and his campaign were directly involved in advancing and coordinating the plot to replace legitimate Biden electors with fake electors not chosen by the voters,” Rep. Adam B. Schiff, a member of the select committee, said at Tuesday’s hearing. The evidence provided by witnesses at the hearing backed that up. Arizona House Speaker Rusty Bowers testified that Trump and his lawyers repeatedly asked him to remove legitimate electors for Biden and substitute them with an illegitimate Trump slate. That testimony was supported by additional video testimony from Trump allies including White House and campaign aides and Ronna McDaniel, chair of the Republican National Committee.
What they all described is the equivalent of submitting a fake verdict form in a judicial proceeding. Whether one truly believed their preferred candidate won the election or that the official verdict was flawed is simply no defense.
It is no wonder that three prominent lawyers associated with Trump refused to participate, which witnesses also attested to Tuesday. Even if the lawyers were confident that Trump thought he won and could prove his state of mind in court, it would surely not have cured their misgivings about the illicit methods chosen. Nor should it. Trump’s state of mind in that regard is irrelevant.
The alternate-electors scheme is being looked at by both the U.S. Department of Justice and the Atlanta district attorney. District attorneys in other jurisdictions where phony certificates were cooked up should also investigate those responsible - including the former president.
Bowers’s testimony showing that Trump and his lawyers John Eastman and Rudy Giuliani engaged in a sustained effort to pressure him to betray his oath of office by taking extralegal steps to overturn the election results would be useful in any Georgia or federal prosecution to show a clear pattern of conduct.
What Trump may or may not have believed about the election outcome was also beside the point when he pressured Vice President Mike Pence to violate his legal duties in the counting of the electoral votes. A lead Justice Department prosecutor told a court that to prove criminal obstruction, Trump would simply have to know Pence had a legal duty to recognize the results. As experts have said, the latest evidence presented by the select committee to prove that case is beyond compelling.
Indeed, with its investigatory powers, the Justice Department could develop the evidence even further. That includes considering whether to immunize Eastman, who promoted the idea to Trump that Pence and the state legislatures had powers that they didn’t have. That way Eastman couldn’t invoke his Fifth Amendment right to refuse to testify. He would be compelled to divulge evidence that would probably further incriminate the former president.
What’s more, with those same sets of facts, federal prosecutors may also have a relatively easy case to prove that Trump conspired by “intimidation or threat” to impede an official from “discharging any duties” -- a specific charge against both the Oath Keepers and the Proud Boys regarding their involvement in the Jan. 6 attack. Marc Short, Pence’s former chief of staff, testified that the pressure on Pence was “painful,” and that based on the president’s statements he anticipated a threat to the vice president’s safety. In fact, he went so far as to alert Secret Service on Jan. 5, 2021.
The criminal investigation by the Fulton County district attorney has long been underway and, with a smaller nucleus of facts, may be the first to reach the stage of indictments. The Justice Department has reportedly launched a multistate criminal investigation of the false-electors scheme, and has issued grand jury subpoenas that seek communications with any “agent of Donald J. Trump.” The investigatory powers of both state and federal law enforcement agencies is substantial, but prosecutors need not make these cases more difficult than they are. If they focus on Trump’s efforts to engage in vigilante justice, the intent element of these crimes is easily satisfied.
Ryan Goodman is a former special counsel at the Department of Defense and a law professor at New York University. Norman Eisen is a senior fellow at Brookings and served as counsel to House Democrats for the first impeachment and trial of Donald Trump. Barbara McQuade is a law professor at the University of Michigan Law School and the former U.S. attorney for the Eastern District of Michigan.
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