by Harry Litman
Many experts doubt the ultimate ability of the criminal justice system to convict Donald Trump because it’s possible he really believed he’d won the election.
The argument goes this way: His conduct — trying to overturn a legitimate election — may look like a crime, but was there criminal intent? If he is so much of a sociopath that he believes his own Big Lie (or, to state it with the sort of constitutional precision utterly foreign to him, there is a reasonable doubt whether he has that belief), could he wriggle out of culpability?
He can’t — or he shouldn’t. Intent in a criminal case depends on the defendant’s state of mind about a specific criminal act, not an overall state of affairs. That’s “hornbook law” — so basic it doesn’t require citation for law students. And it should satisfy the “he really believed it” concerns about the criminal charges Trump may face.
Take the Fulton County, Ga., case, in which District Attorney Fani Willis has just convened a special grand jury to look at possible violations of state law arising out of Trump’s infamous shakedown telephone call with Georgia Secretary of State Brad Raffensperger, pressuring him to “find 11,780 votes.”
The speculation is that the case could turn on how a jury weighs the former president’s motive. During the Raffensperger phone call, Trump claimed he won Georgia by “hundreds of thousands of votes.” When Willis’ request for a grand jury surfaced last week, Trump put out a statement reiterating that defense for the call: His actions were “perfect.” He “didn’t say anything wrong” because he was trying “to look into the massive voter fraud which took place in Georgia.” If a jury believes he believes it, will they let his strong-arming slide?
Trump’s claim that he won Georgia is wholly implausible — it runs against not just the weight of the evidence but the entirety of the evidence. But a jury need not decide he was lying to convict him of election fraud in Georgia.
A careful parsing of the legal code reveals the defect with the “he’s not guilty if he really believed it” line of thinking.
We know from press reports that Willis is focused on a particular statute: criminal solicitation to commit election fraud. It proscribes the act of “soliciting, requesting … or otherwise attempting to cause [a] person to engage in conduct constituting a felony under the election code.” The definition of intent is simply that someone meant for the proscribed act to occur. If the conduct is a felony, so is its solicitation.
As to whether what Trump asked Raffensperger to do is a felony, there are several laws that make it illegal to change a vote count in Georgia. The one likely to come into play in Willis’ case makes it criminal “to willfully tamper with any … ballot box, voting machine, direct recording electronic (DRE) equipment, or tabulating machine” used in an election.
If Willis’ case comes to trial, the jury would be instructed that the intent requirement is fulfilled if Trump wanted Raffensperger to tamper with the vote count, which is a felony. Even if the then-president was certain he was justified, he is no less guilty.
A similar analysis applies to another of the potential criminal cases aimed at accountability for the push to overturn the election.
In at least five states, pseudo electors submitted phony attestations to the National Archives identifying themselves as the “duly elected and qualified Electors for President and Vice President” in the 2020 election. That conduct potentially violates forgery statutes in each of the states, and the Department of Justice announced Tuesday that it had begun to investigate the allegations.
What about state of mind here? Did those who signed the documents lack criminal intent because they “really believe” they were legitimate electors? It doesn’t matter.
Even if each of the elector charlatans was possessed of the firmest of convictions that Trump had won their state, their attestation that they were “duly” qualified is still false. Their culpability for creating a false document with the intent of committing fraud would be unchanged by their subscription to the Big Lie.
None of this is picayune or legalistic. Precise readings of the law control the guilt-innocence decisions in courtrooms. Such legalistic distinctions, for example, are what drove the convictions in the Derek Chauvin and Elizabeth Holmes cases.
Nor is the bottom line unfair to deluded defendants who come before the court. What Georgia legalese drives home is that even if Trump pressured Raffensberger under the sincere belief that he’d won the state, it was wrong, indeed criminal, to twist the arm of the secretary of state to get him to alter the count. Trump’s lawful avenue of redress was the legal process and the state courts.
For those who think Trump always knew that the Big Lie was just that, the prospect of his eluding justice by claiming he really believed it would be the last refuge of a scoundrel. But never fear. It turns out that it’s no refuge at all.
