The Volokh Conspiracy
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How Can Jack Smith Prove That Trump Knew He Lost the Election?
We don't know what Jack Smith knows, but here's some speculation.
One of the questions raised by the indictment of former President Trump in the District of Columbia, on charges involving the 2020 election aftermath, is whether the prosecution, headed by Special Counsel Jack Smith, can prove beyond a reasonable doubt that Trump knew he had lost the election. The narrative of the prosecution is that Trump knew perfectly well what he was told over and over again by his own advisors and GOP officials: He had lost. He was trying to overturn that result, the argument goes, by using political influence on others in his party to get them to declare he won, despite knowing that he lost. Meanwhile, Trump defenders say that Trump legitimately thought he won. On that view, Trump was told repeatedly that he lost, sure, but those assertions did not persuade him. On that narrative, Trump was on a quixotic but legal journey to see his rights vindicated.
One question this raises is, how might Smith try to prove Trump knew?
The indictment focuses mostly on what Trump was told, and the overall implausibility of him thinking he had won. But I wonder if Smith might have more direct evidence than the indictment lets on.
In particular, there have been reports of Trump telling other people that he lost. Here are some of the more prominent examples from the public record:
- "I don't want people to know we lost, Mark. This is embarrassing. Figure it out. We need to figure it out. I don't want people to know that we lost." — President Trump in December 2020, according to Cassidy Hutchinson.
- "A lot of times he'll tell me that he lost, but he wants to keep fighting it, and he thinks that there might be enough to overturn the election." — Trump Chief of Staff Mark Meadows, according to Cassidy Hutchinson.
- "Can you believe I lost to this guy?" — Trump while watching Biden on TV after the election, according to Alyssa Farah Griffin,
- "I've had a few conversations with the president where he acknowledged he's lost. He hasn't acknowledged that he wants to concede, but he acknowledges that he lost the election." — Trump Director of National Intelligence John Ratcliffe, according to Cassidy Hutchinson.
- "When I didn't win the election. . . . " — Trump in 2021, on video, referring to how happy a foreign official was when Trump didn't win in 2020.
Granted, the indictment does include a tiny bit of this. Perhaps the most notable is Paragraph 83's Trump quote that "it's too late for us. We're going to give that to the next guy." But there's much less in the indictment than in the public record.
And for all we know, what is in the public record is only part of the story. For example, of the five examples above, two are hearsay. They are Cassidy Hutchinson's reports of what Meadows and Ratcliffe told her Trump had said. But Smith probably knows more than we do. There have been reports that Mark Meadows cooperated and testified before the grand jury investigating Trump's post-election conduct. There have also been reports that John Ratcliffe cooperated and testified before that grand jury.
We can't be sure, but it seems likely that Jack Smith has testimony directly from Meadows and Ratcliffe of what Trump told them. And if they were talking to Trump every day about this stuff, they presumably know a lot. And there may be other witnesses who talked to Trump at the time, and who are ready to testify about it at trial. We don't know.
Given this, it seems at least possible to me that Smith has more evidence of Trump's state of mind than he's letting on. He may be able to put a witness like Mark Meadows on the stand and have direct testimony of what Trump said to Meadows. It's true that Smith didn't signal this in the indictment. But then he didn't have to, and I would think there are some plausible reasons (preventing witness intimidation, etc.) for why he might not want to include it.
This all is just speculation, of course. It's possible Smith doesn't have this evidence. Perhaps Meadows and Ratcliffe testified before the grand jury that Trump never suggested he believed he lost. Maybe they testified that Hutchinson remembered incorrectly or was otherwise not telling the truth. Perhaps Smith tried to get evidence that Trump knew he lost, but Smith didn't come up with much he could use. Entirely possible.
The upshot of all this, it seems to me, is that it's too early to know what evidence Smith has about what Trump knew. Maybe it will be hard for Smith to prove Trump's mental state. Or maybe Smith has very good evidence of Trump's mental state. At this early stage, we don't know what Jack Smith knows.
UPDATE: I have fiddled a bit with the post for a few minutes after posting it.
