Despite mounting evidence, Trump’s trial could face challenges

There were also new questions last week about the former president Donald J TrumpPossible criminal exposure for his quest to nullify the 2020 election, Mr. Trump issued a rambling 12-page statement.

It contained its usual mix of outlandish claims, exaggeration, and outright lies, but it also contained something that Trump allies and legal experts said was remarkable and different: the beginnings of a legal defense.

On nearly every page, Mr. Trump offered explanations of why he was convinced the 2020 election had been stolen from him and why it was within his rights to challenge the results by any means available.

Trump wrote that what happened at the Capitol on January 6, 2021, stemmed from Americans’ attempt to “hold their elected officials accountable for visible signs of criminal activity during the elections.”

His statement, while unfounded, holds special significance given the intense focus on whether he could face criminal charges. If the Department of Justice files a case against him, prosecutors will be challenged to prove that he knew – or should have known – that his position was based on assertions about widespread electoral fraud that were false or that his attempt to block Congress’ testimony result was unlawful.

As a potential defence, the tactic suggested by Mr. Trump’s statement is far from ensuring no prosecution, and it presents clear credibility problems. Mr. Trump has a long history of saying whatever suits his goals without regard for the truth. And some of the actions he took after the 2020 election, such as pressuring Georgia officials to flip enough votes to change the outcome in that state to his column, and talking about a determined effort to retain power rather than addressing some of the broader perceived weaknesses. in the electoral system.

But the continued flow of lies he has presented highlights some of the complexities in pursuing any criminal case against him, despite how well the basic facts remain at this point.

The statement also reflected the behind-the-scenes steps Mr Trump was taking to build a new legal team to handle a range of investigations, including pressure campaign To change the outcome of the elections in Georgia and its rule Take confidential documents with him when he left office.

M. Evan Corcoran, a white-collar defense attorney and former federal prosecutor brought in by Mr. Trump, was involved in drafting the document, according to two people briefed on the matter. Mr Corcoran also represented Stephen K. Bannon, a Trump ally was too directed by the Ministry of Justice For its refusal to cooperate with the House committee investigating the January 6 attack.

Corcoran and a Trump spokesman did not respond to a request for comment.

The statement came during a week in which House hearings have exposed Mr. Trump to potential criminal and civil law by highlighting testimony from aides and advisers documenting what, and when, he was told about the validity of allegations of election fraud and the legitimacy of his strategy of holding on to power.

At its third hearing on Thursday, the committee made a case that Trump had advanced a scheme that would have Vice President Mike Pence unilaterally cancel the 2020 election despite telling Trump it had no legal basis.

The Department of Justice is investigating a number of the riots in the Capitol and the broader efforts by Mr. Trump and his allies to keep the White House despite the victory of Joseph R. Biden Jr. Attorney General Merrick B. Garland has given no public indication that the department is building a case against Trump, who has long maintained that investigations into the January 6 attack were factual and baseless and no side of the story was presented. In sessions of the House Committee.

But the commission’s investigation has already found evidence that could increase pressure on Mr Garland to act more forcefully, a course of action that would have extraordinary legal and political ramifications. After prodding from the Department of Justice, the House Committee has indicated in recent days that it will do so Start sharing some text of witness interviews with federal prosecutors early next month.

In a civil case relating to the commission’s work, a federal judge concluded in March that Mr Trump and his lawyer, John Eastman, had Most likely crimes were committed in their efforts to annul the elections. Judge David Carter, of the Federal District Court for the Central District of California, concluded in this case that “the illegality of the plan was manifest.”

Judge Carter cited two crimes he said the two men were likely guilty of: conspiracy to defraud the United States and obstruction of Congressional proceedings. Members of the House committee have made similar suggestions, and some lawyers have claimed that Mr. Trump may also be subject to a seditious conspiracy charge.

But a successful trial of potential charges proposed by Justice Carter and others could depend on Mr Trump’s proof of intent – an issue his statement last week appeared to address with the argument that he believed his challenges to the outcome were based on legitimate questions about the conduct of the election.

Daniel L. Zelenko, a white-collar defense attorney and former federal prosecutor, said that in all potential crimes considered in connection with Mr. Trump’s conduct, the Justice Department would need to show that it had intended to do so. commit a crime. Mr Zelenko said that while new details revealed by the commission would help prosecutors establish intent, the government still had a host of other issues to overcome in building any trial.

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“The key is there is contemporary evidence that he was saying he knew the election was not stolen but he tried to stay in power anyway,” said Mr Zelenko, co-chair of the white-collar advocacy practice at Crowell & Moring. “The problem with Trump is that you have to try to get into his mind, and he has a history of lying and pushing lies that make it hard to say what he really believes.”

Aside from the evidence the commission has already uncovered, the commission has received other testimony that undermines Mr. Trump’s claim that he believes he did indeed win the election. According to two people briefed on the matter, Alyssa Farrah Griffin, the White House communications director in the days after the election, recently testified before the committee that Mr. Trump told her in November 2020 words along the lines of: Can you believe me he lost to Biden?

In a TV interview last fall, Ms. Griffin, who did not respond to a request for comment, acknowledged one of the complicating factors in determining what Mr. Trump might believe. She said Mr. Trump may have changed his mind in the aftermath of the election.

“He told me shortly afterwards that he knew he lost, but then, you know, people turned around,” Ms. Griffin said on CNN, referring to outside advisers who pushed false allegations of election fraud. “They got information in front of him, and I think his opinion has really changed about that, and that’s scary, because he’s already lost, and the facts are out there.”

Samuel W. Boyle, a Duke University law professor and former federal prosecutor, said any criminal case against Mr Trump must begin with proof that he knew what he was doing was improper.

“You have to show that he knows what he was doing is wrong and has no legal basis,” he said. “I’m not saying he should think: What I’m doing is a crime. He proves: I know I have no legal argument, I know I lost the election, but I’m going ahead with a well-known claim that it is false and a scheme that has no legal basis.”

House committee sessions are not a trial. The commission is free to be selective in the testimony it uses to build a case against Trump, and the former president has no allies on the commission who could question witnesses or provide him with useful information.

But the hearings highlighted a series of witnesses who said Mr Trump had been told directly and repeatedly prior to Jan. 6 that there was no basis for his allegations that election fraud cost him his re-election.

The panel provided brief but critical testimony from Greg Jacob, a senior adviser to Mr. Pence. In an affidavit, Mr. Jacob told the commission that Mr. Eastman had told Mr. Trump on January 4, 2021 — who had been pushing a plan to ban Mr. Pence or delay certification of the Electoral College count — the scheme would violate the Electoral Counting Act, the federal law that governs the process.

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In investigations that focus almost exclusively on physical actions, such as assaults, robberies, and murders, prosecutors need not focus on establishing intent because the link between the act and the harm is usually obvious.

However, the question of intent can be muddled when the offense under investigation involves a procedure in which it is difficult to establish the defendant’s state of mind. The crimes that legal experts say Mr. Trump may have committed — obstruction of Congress, defrauding the American people and seditious conspiracy — fall into this bucket.

In these cases, the government faces a series of obstacles that need to be clarified to establish intent. The cleanest way is to find evidence that the defendant knew he had done something wrong.

In Mr Trump’s case, lawyers said, it could take the form of direct evidence that he knew his assertions about widespread election fraud were unfounded or that he knew the strategy he was following was illegal.

If the Department of Justice cannot establish direct evidence of what Mr. Trump knows, prosecutors will have to turn to circumstantial evidence. To do this, they will usually rely on what experts and those in authority around him have to say about whether the election was actually stolen or what kinds of strategies to combat the outcome would be legal.

Lawyers said that expert advice is often enough to show a jury what the defendant knows. But that may be more difficult with Mr. Trump because he has a long history of ignoring experts and his aides, they said.

Given the challenge of showing what Mr. Trump already knows, there is another way prosecutors can show that he had corrupt intent: establishing what is often called “willful blindness”.

Under this principle, the government would need to show that Mr. Trump believed there was a good chance that experts and his aides were telling him the truth when they said the election was not stolen, but that he took deliberate action to avoid learning more about why they believed that.

Mr. Zelenko said he understood why many Americans watching the hearings were convinced that a criminal case against the former president was a strong possibility. But he cautioned that the standard for evidence against the defendant is higher in court, where judges almost always insist that prosecutors rely on direct testimony, witnesses can be cross-examined, and prosecutors need to prove their arguments beyond a reasonable doubt.

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