The indictment that was unsealed yesterday in United States of America v. Donald J. Trump uses the phrase "knowingly false" 33 times, referring to the former president's claims about the massive fraud that supposedly denied him his rightful victory in the 2020 election. There is a very good reason why that characterization is sprinkled throughout the indictment: All of the charges—which include conspiring to defraud the United States, conspiring to obstruct an official proceeding, and conspiring to deprive Americans of their voting rights—depend on the assumption that Trump did not really think he had won reelection.
Nearly three years after Trump began complaining about "a major fraud" that supposedly had delivered a phony victory to Joe Biden, however, it remains unclear whether he honestly believed the nonsense he was spouting. The indictment itself includes evidence pointing in both directions.
The question is not whether a reasonable person would have believed that some combination of illegal ballots and deliberately corrupted voting machines had changed the election outcome, because the defendant is not a reasonable person. He is a man who cannot stand to admit defeat and who has a long history of listening to advisers who tell him what he wants to hear. Given these traits, it is plausible that he would latch onto any claim, no matter how absurd or unsubstantiated, that helped him deny the reality that voters had rejected him.
The indictment details the many times that people who supported Trump's reelection, including campaign employees, top Justice Department officials, and state officials charged with overseeing the election or certifying its results, debunked specific fraud claims or candidly told him he had no choice but to acknowledge that he had lost. Yet Trump persisted in pushing the stolen-election narrative, seemingly impervious to any evidence contradicting it.
As Special Counsel Jack Smith sees it, Trump's stubbornness shows that he was "determined to remain in power" and therefore pressed claims he knew to be false, ultimately resorting to extralegal tactics. He and his allies filed a slew of uniformly unsuccessful lawsuits challenging the election results—which they had a right to do, as the indictment acknowledges. But they went too far, the government says, when they hatched a scheme to enlist "fake electors" in seven battleground states, aiming to create the impression that there was a genuine question about whether Joe Biden had won those states.
Trump et al. repeatedly urged the Justice Department to reinforce that impression by falsely telling state officials that it had "identified significant concerns that may have impacted the outcome of the election in multiple States." During a phone conversation, Trump reportedly told Acting Attorney General Jeffrey Rosen, "Just say that the election was corrupt and leave the rest to me and the Republican congressmen." Trump's demands and his plan to appoint a more compliant replacement for Rosen nearly led to a mass resignation by senior department officials.
Meanwhile, Trump and Giuliani were urging legislative leaders in states such as Arizona, Georgia, and Michigan to recognize his electors instead of Biden's. In response, Arizona House Speaker Rusty Bowers, a Republican, explained that he could not do what Trump and Giuliani wanted: "The law does not authorize the Legislature to reverse the results of an election. As a conservative Republican, I don't like the results of the presidential election. I voted for President Trump and worked hard to reelect him. But I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election."
Trump repeatedly pressured Vice President Mike Pence, publicly and privately, to intervene in the purported controversy while overseeing the congressional tally of electoral votes on January 6, 2021. Trump urged Pence to accept the Republican slates, reject Biden's, or send the competing slates back to the states, where legislators supposedly could choose between them. According to the indictment, he did that even though he knew Pence had no such authority and recognized that there was no factual basis for arguing that Biden did not win those states.
Frustrated by Pence's refusal to go along with this scheme, Trump turned his ire on his vice president, publicly criticizing him for lacking the "courage" to cooperate. He did that after angry Trump supporters attacked the Capitol on January 6, disrupting the congressional certification of Biden's victory and forcing Pence to flee along with the legislators. Trump had summoned those supporters to Washington for a "SAVE AMERICA RALLY," at which he warned them that the republic's fate was at stake and urged them to "peacefully" march on the Capitol in protest.
According to the indictment, Trump did all this as part of a criminal plot to remain in power. He knew his grievance was phony, and he knew the tactics he was using to overturn the election results were illegal.
That interpretation is plausible, but so is an alternative explanation that will be at the center of Trump's defense. Trump, who to this day insists the election was rigged, maintains that he was pursuing legitimate remedies for a grave injustice. He says he relied on advice from lawyers like Rudy Giuliani and John Eastman, both of whom the indictment describes as co-conspirators. Unlike the many skeptics in Trump's circle, those advisers reinforced his conviction that he had won and assured him that he had legal options to change the outcome even after the electors were certified.
To support its interpretation, the government cites evidence suggesting that Trump understood he had lost. During a meeting with Joint Chiefs of Staff Chairman Mark Milley and other national security advisers on January 3, 2021, the indictment says, Trump "calmly" accepted a recommendation that the issue they were discussing should be left for the next administration, since Biden's inauguration was just 17 days away. "Yeah, you're right," Trump allegedly said. "It's too late for us. We're going to give that to the next guy."
Three days before the Capitol riot, that conversation suggests, Trump acknowledged the reality that he would be leaving the White House on January 20. But that does not necessarily mean he accepted the legitimacy of that result. On the day of the riot, the indictment notes, Trump declined to intervene, "instead repeatedly remarking that the people at the Capitol were angry because the election had been stolen." Late that afternoon, Trump "joined others in the outer Oval Office to watch the attack on the Capitol on television" and remarked, "See, this is what happens when they try to steal an election. These people are angry. These people are really angry about it. This is what happens." That sounds more like a true believer than a con man.
In favor of the latter reading, the indictment notes that Trump had previously expressed skepticism about a baroque conspiracy theory promoted by Sidney Powell, a lawyer whom the indictment describes as "Co-Conspirator 3." Two weeks after the election, Powell appeared at a press conference alongside Giuliani and Trump campaign lawyer Jenna Ellis, who described Powell as a member of the campaign's "elite strike force team." In that capacity, Powell outlined an elaborate international plot involving Dominion Voting Systems, tricky software, fake ballots, election officials across the country, George Soros, the Clinton Foundation, deceased Venezuelan strongman Hugo Chavez, and "communist money through Venezuela, Cuba, and likely China."
At a meeting with advisers that same month, the indictment says, Trump conceded that Powell's "claims regarding the voting machine company" were unsubstantiated and remarked that she sounded "crazy." Trump nevertheless publicly embraced the essence of Powell's story: that software supplied by Dominion had "switched" massive numbers of Trump votes to Biden votes. Did Trump cynically promote that claim, knowing it to be false, or did he decide, in his desperation to avoid conceding the election, that maybe it was not so crazy after all? With Trump, either motivation is possible.
The same goes for all the times Trump was told that there was no evidence to support specific claims involving illegal voting or fake ballots. In mid-November, for example, a senior campaign adviser "informed the Defendant that his claims of a large number of dead voters in Georgia were untrue."
In an email the following month, the same adviser complained about the repeatedly debunked claim that election workers at Atlanta's State Farm Arena had produced and counted thousands of fake ballots. "When our research and campaign legal team can't back up any of the claims made by our Elite Strike Force Legal Team," he wrote, "you can see why we're 0-32 on our cases. I'll obviously hustle to help on all fronts, but it's tough to own any of this when it's all just conspiracy shit beamed down from the mothership."
Again and again, Trump ignored such objections and continued to promote claims that his advisers said had no merit. He re-upped several of those claims during the notorious January 2, 2021, telephone conversation in which he urged Georgia Secretary of State Brad Raffensperger to "find" the votes necessary to overturn Biden's victory in that state. Trump floated a litany of discredited rumors and conspiracy theories that Raffensperger and his office's general counsel, Ryan Germany, politely but firmly refuted. Trump was unswayed.
When you read the transcript of that conversation, it is hard to tell what Trump is thinking. Any rational person would have taken to heart what Raffensperger and Germany were saying and either changed his mind or at least taken a closer look at the fraud claims. But again, Trump is not a rational person.
Trump initially acknowledges that the rumors he describes "may not be true." But within a few sentences, he seems to have convinced himself that allegations of ballot shredding and equipment swaps are reliable enough to establish "a very sad situation."
Later Trump practically begs for confirmation of the claims. "Do you think it's possible that they shredded ballots in Fulton County?" he says. "Because that's what the rumor is. And also that Dominion [Voting Systems] took out machines. That Dominion is really moving fast to get rid of their, uh, machinery. Do you know anything about that? Because that's illegal, right?"
The ambiguity of that conversation reflects a broader problem that prosecutors will face in trying to convict Trump. Proving a conspiracy to defraud the United States requires showing that Trump was deceitful rather than delusional. The alleged conspiracy to "injure, oppress, threaten, or intimidate" people in their exercise of voting rights (including the right to have their votes counted) likewise requires criminal intent. And the government has to prove that Trump "corruptly" sought to obstruct the electoral vote tally.
Even if independently illegal conduct is enough to establish that a defendant acted "corruptly," the government must prove that Trump knew his tactics were unlawful. The lawyers he favored were telling him otherwise.
There is a colorable argument, based on the precedent established by the 1960 dispute over Hawaii's electoral votes, that presenting "contingent" electors was a legitimate way to preserve the Trump campaign's options should it prevail in legal challenges to the election results. As the indictment notes, that is the rationale that Trump's lawyers offered when they persuaded Republican nominees for the Electoral College in the supposedly contested states to sign certificates identifying themselves as "duly elected and qualified": They would be counted only if Trump's pending election lawsuits were successful.
If the would-be electors accepted that theory, it is possible that Trump did too. By January 6, of course, it should have been clear there was no chance that Congress would accept the "contingent" electors, reject Biden's slates, or ask state legislatures to resolve the supposed conflicts. In trying to achieve one of those outcomes through Pence's intervention, Trump was asking him to do something that Pence rightly concluded was beyond his constitutional powers. But again, Eastman was advising Trump that the cockamamie plan was a viable option.
Before the indictment, Pence, who is now competing with Trump for the 2024 Republican presidential nomination, said "history will hold him to account for his actions that day." But Pence was skeptical of attempts to hold Trump criminally liable. "I hope it doesn't come to that," he said. "I'm not convinced that the president acting on bad advice of a group of crank lawyers that came into the White House in the days before January 6 is actually criminal."
Commenting on the indictment today, Pence again condemned Trump's conduct. "I really do believe that anyone who puts themselves over the Constitution should never be president of the United States," he told reporters. "And anyone who asks someone else to put themselves over the Constitution should never be president of the United States again." But Pence reiterated that "the president was surrounded by a group of crackpot lawyers." He noted that "it will be up to the government now to prove beyond a reasonable doubt that this actually represented criminal activity."
Did Trump drink the Kool-Aid mixed up by Eastman, Giuliani, and the other advisers that Smith describes as his co-conspirators? Did he really believe, despite all the evidence to the contrary, that Biden stole the election? After covering Trump's election claims since November 2020, I'm still not sure. Fair-minded jurors are apt to have similar doubts.
[This post has been updated with additional comments from Pence.]
The post Did Trump Really Believe the Election Was Stolen? Here Is Why It Matters. appeared first on Reason.com.
