The Volokh Conspiracy

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:

1. "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.
2. "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.
3. "Can you believe I lost to this guy?" — Trump while watching Biden on TV after the election, according to Alyssa Farah Griffin,
4. "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.
5. "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.

The thirty-seventh episode (Apple Podcasts link here and Spotify link here) of "Strangers on the Internet" with co-host and psychologist Michelle Lange features Prof. Derek Bambauer from the University of Florida Levin College of Law.

We catch up with our Internet law scholar guest as he reviews his dating life in Tucson, Arizona before his big move across the country to Gainesville, Florida. Derek talks about his mostly positive experiences meeting people online, his penchant for women in academia, and the challenges of making schedules work when both daters have kids.

He also uses his scholarly expertise to discuss dating app algorithms, online safety, and possible tweaks to current technology. Come join us for an episode where the professional is the personal!

I have now had a chance to read the entire 45-page indictment in United States v. Donald J. Trump. Much of this information has been published in drips and drabs over the past two years. But reading through the entire chronology, from start to finish, was a very different experience.

Here, I would like to highlight what Special Counsel Jack Smith left out.

The most significant omission was that Trump was not indicted for insurrection, 18 U.S.C. § 2383. This decision was not particularly surprising, since none of the January 6 defendants have been charged with insurrection. Stuart Rhodes and the Proud Boys were convicted of seditious conspiracy. Federal prosecutions for insurrection are extremely rare, and there were many open questions about how to obtain a conviction.

The decision not to seek an indictment for insurrection has several immediate consequences. First, the punishment for violating Section 2383 includes being "incapable of holding any office under the United States." Seth Barrett Tillman and I wrote in early 2020 that even if Trump were convicted of violating this statute, he could not be disqualified from serving a second term as President. Now that Smith has not indicted Trump for violating this statute, we will not need to decide the scope of Section 2383.

Second, if Smith had indicted Trump for violating Section 2383, he would have had to lay out in a systematic fashion why Trump's conduct amounted to insurrection. Regardless of whether Trump was convicted of violating that statute, state election boards could have relied on that indictment as the predicate to disqualify Trump. In other words, there would have been a common nucleus of operating facts for a Section 3 claim against Trump. Smith's indictment could have been copied-and-pasted nationwide. But we do not have those facts. Indeed, based on my quick read, the word "insurrection" appears nowhere in the statute.

Third, what lessons should we draw from the fact that Smith did not indict Trump for insurrection? In some legal circles, advocates contend that it is so obvious that Trump committed insurrection. Yet, the special counsel, after studying the issue for months, opted not to bring that charge. Why? Perhaps Smith determined that he could not prove beyond a reasonable doubt that Trump engaged in insurrection. Or maybe Smith determined there were considerable legal questions about how to obtain such a conviction--most critically, was there an actual insurrection? (Yes, for the Supreme Court to knock Trump off the ballot, you need five votes to say that there was an insurrection as a matter of law--good luck with that!) Perhaps Smith engaged in a political calculus, and determined that he didn't need to wade into murky insurrection waters. There were so many other ways to obtain a conviction. Indeed, I speculated that Smith's decision to avoid "distracting fights" would counsel against bringing a Section 2383 charge. Ultimately, we don't know why Smith brought the charges he did. Everyone who is gung-ho on disqualifying Trump for insurrection should hesitate. But they won't, of course. They'll say that a criminal prosecution, with the full panoply of due process, requires a much higher burden of proof than a civil disqualification proceeding. Section 3 is the new Emoluments Clause.

Now, let's flash back to January 13, 2021. The House of Representatives adopted one article of impeachment:"incitement of insurrection." The precise contours were left deliberately vague, but it embraced both claims of insurrection and incitement. Once again, the fact that Smith chose not to indict Trump for insurrection casts at least some doubt on the decision to impeach Trump for insurrection. Of course, the counter argument is that the burden of proof with an impeachment is lower, there are no due process protections, and impeachment can be a political process. We hashed out all those arguments in 2021. But would about incitement? Why didn't Smith charge Trump with inciting violence?

If you read through the indictment, there are many allegations that seem perfectly suited for an incitement charge. Here is a sampling:

When that failed, the Defendant attempted to use a crowd of supporters that he had gathered in Washington, D.C., to pressure the Vice President to fraudulently alter the election results.

On December 19, 2020, after cultivating widespread anger and resentment for weeks with his knowingly false claims of election fraud, the Defendant urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, "Big protest in D.C. on January 6th. Be there, will be wild!" Throughout late December, he repeatedly urged his supporters to come to Washington for January 6.

Within hours of the conversation [on January 1], the Defendant reminded his supporters to meet in Washington before the certification proceeding, tweeting, "The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!"

That same day [January 5], the Defendant encouraged supporters to travel to Washington on January 6, and he set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in the Defendant's favor, including issuing the following Tweet . . . .

On January 6, starting in the early morning hours, the Defendant again turned to knowingly false statements aimed at pressuring the Vice President to fraudulently alter the election outcome, and raised publicly the false expectation that the President might do so . . . .

[On January 6 at 11:56 a.m.] The Defendant repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to obstruct the certification.

Finally, after exhorting that "we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore," the Defendant directed the people in front of him to head to the Capitol, suggested he was going with them, and told them to give Members of Congress "the kind of pride and boldness that they need to take back our country."

During and after the Defendant's remarks, thousand of people marched toward the Capitol.

Judge Mehta, in a detailed opinion, refused to dismiss the civil incitement lawsuits against Trump. Mehta also dealt with all of the First Amendment concerns that I (and others) raised during Trump's impeachment trial. Right or wrong, Smith could have relied on Mehta's First Amendment analysis to indict Trump for criminal incitement. But Smith didn't? Why? Maybe he thought the First Amendment analysis would not hold up on appeal to the Supreme Court. Maybe he thought that he may not be able to obtain a criminal conviction with proof beyond a reasonable doubt. Or Smith worried that criminalizing what was, to some at least, a political rally, was too risky. I'll pose a question I raised earlier: if the special counsel declined to bring an incitement charge, was this the right charge to bring in a court of impeachment? Same caveats as earlier.

Finally, six facts in particular were left out: the names of six un-indicted co-conspirators. The Washington Post speculates that Rudy Giuliani was #1, John Eastman was #2, Sidney Powell was #3, Jeff Clark was #4, Kenneth Chesebro was #5, and #6 remains unknown. Each of these five (six) individuals faces considerable legal exposure, and may still be indicted. We will see if they testify against Trump to avoid prosecution. There are also a number of lawyers mentioned throughout the report that worked in the Department of Justice and in Trump's orbit that have exposure. Smith is not done here.

I'll have much more to say about the prosecution in due course. These are only my preliminary thoughts.

Update: In the New York Times, Ryan Goodman and Andrew Weissmann opine on Smith not bringing an insurrection charge:

Although the Jan. 6 select committee referred Mr. Trump for investigation for inciting an insurrection, Mr. Smith wisely demurred. The Justice Department has not charged that offense in any other case involving the attack on the Capitol, and insurrection has not been charged since the 19th century. Of course, no president has engaged in it since then — but since no one else has been charged with that crime relating to Jan. 6, it likely would have been an issue. And since the penalty for the insurrection offense is that the defendant would not be eligible to hold federal office, it would have fueled a claim of weaponizing the Justice Department to defeat a political rival.

Aaron Sibarium reports for the Free Beacon:

"All applicants will be required to submit a short video, no longer than 90 seconds, addressing a question chosen at random," the school's admissions page said Monday morning. "The video statement will allow applicants to provide the Admissions Committee with additional insight into their personal strengths."

Critics slammed the move as a thinly veiled attempt to defy the Supreme Court's ruling and practice affirmative action by other means, using appearance as a proxy for race. Columbia's decision "has all the hallmarks of a willful effort to evade the requirements of Title VI of the Civil Rights Act," said Edward Blum, the founder of Students for Fair Admissions, the plaintiffs in the June case that outlawed affirmative action. "What is a 90-second video supposed to legitimately convey that a written statement could not?"

Reached for comment by the Washington Free Beacon, however, a spokesman for the law school said it had all been a misunderstanding and, by 6:00 PM Monday evening, Columbia had scrubbed the language from its website.

I believe this just happened today, since argument is next week (Aug. 10); the panel is Judges Edith Brown Clement, Jennifer Walker Elrod, and Don Willett. Recall that this is the expedited appeal of the July 4 injunction that barred various federal departments from encouraging social media platforms to delete certain content.