Now facing a second federal indictment – this time on charges stemming from Special Counsel Jack Smith's probe of the events of Jan. 6, 2021 – former President Donald Trump could have an ace to play in that the government's success may turn in large part on whether it can establish his true beliefs about the role of fraud in the 2020 election outcome, as the Washington Post reports.
The reason for this is that one of the lynchpins to Smith's claims against Trump is the notion that the then-president knew at the time that the representations he was making about widespread irregularities in the 2020 vote – which the prosecution blames for the Capitol unrest on that fateful day – were false.
As the Post notes, the initial page of the indictment of Trump issued last week flatly declares that, in terms of contentions about outcome-determinative election fraud, “[t]hese claims were false, and the Defendant knew they were false.”
By suggesting that the act of putting forward such allegedly false claims about the election was therefore a criminal – indeed felonious – act, Smith is treading on what many legal experts consider to be arguably shaky legal ground, given the requirement that he prove that Trump was aware that his assertions were untrue.
The Post quoted longtime Washington lawyer Robert Kelner, who said, “I think the entire indictment really turns on the question of Trump's intent. Arguably, there isn't any smoking-gun evidence in the indictment regarding intent, though there is certainly circumstantial evidence.”
“At the heart of the case is really a metaphysical question of whether it's even possible for Donald Trump to believe that he lost the election, or lost anything else, for that matter,” Kelner continued.
Kelner further opined that once the matter reaches the trial stage, Smith “needs to show that all of the false statements Trump made about the election, which the indictment chronicles in great detail, were understood by Trump to be false; otherwise, it becomes a case about political speech and First Amendment rights, and that's not where the government wants to be.”
The attorney continued, telling the Post, “There is a decades-old question about whether, in the privacy of his own office or bedroom, Donald Trump admits to things that he doesn't admit publicly or whether, even when he's staring at himself in the bathroom mirror shaving, he's telling himself the same lies that he tells the rest of us.”
“I don't think we know the answer,” Kelner mused.
Given what the lawyer referred to as the “unanswerable question” regarding Trump's beliefs, Kelner posited that Smith therefore faces a substantial evidentiary hurdle when it comes to securing a conviction.
In addition to acknowledging the obvious obstacles facing Smith in terms of establishing Trump's state of mind with regard to election fraud claims, legal scholar Jonathan Turley has gone a step further to suggest that such an analysis is, in fact, irrelevant anyhow.
In an op-ed penned for The Hill, Turley states that for Smith to prevail on the charges he leveled against Trump – counts not related to inciting violence or insurrection but instead to spreading supposed falsehoods – he “would need to bulldoze through not just the First Amendment but also existing case law holding that even false statements are protected.”
Turley notes that “as a threshold matter, one problem is immediately evident. If Trump actually did (or does) believe that he did not lose the election, the indictment collapses,” and it is indisputable that he had a cadre of attorneys within his inner circle who worked to marshal evidence of fraud and strategized about how best to challenge the result.
But even if Trump understood that stolen election claims were false, as Turley notes, Supreme Court precedent holds that false statements such as those made in a campaign context cannot be criminalized, a fact that poses substantial constitutional barriers to any conviction of the former president and underscores the precarious position in which Smith has placed himself.