As new questions arose last week about the potential criminal revelation of former President Donald J. Trump on his bid to cancel the 2020 election, Mr Trump issued a shuffled 12-page statement.
It contained his usual mixture of strange claims, hyperbole, and outright lies, but also something that Trump’s allies and legal experts said was remarkable and different: the beginning of legal protection.
On almost every page, Mr Trump explains why he is convinced that the 2020 elections were stolen from him and why he has the right to challenge the results with all available means.
What happened in the Capitol on January 6, 2021, Mr. Trump writes, stems from the efforts of Americans “to hold their elected officials accountable for the obvious signs of criminal activity during the election.”
His statement, though unfounded, was particularly significant given the growing focus on whether he could face criminal charges. If the Justice Department filed a lawsuit against him, prosecutors would face the challenge of showing that he knew or should have known that his position was based on allegations of widespread election fraud that were false, or that his experience to block the congressional election, verifying the result is illegal.
As a potential defense, the tactics proposed by Mr Trump’s statement are far from a guarantee against prosecution and pose obvious credibility issues. Mr. Trump has a long history of saying anything that meets his goals without considering the truth. And some of the actions he has taken since the 2020 election, such as pressuring Georgian officials to cast enough votes to change the outcome in that state to his column, speak to a determined effort to stay in power, not to address some of the perceived vulnerabilities in the electoral system.
But his steady stream of lies underscores some of the complexity of any criminal case against him, no matter how well established the key facts are at the moment.
The statement also reflected Mr Trump’s steps behind the scenes to set up a new legal team to deal with a number of investigations, including his campaign to pressure to change the outcome of the Georgia election and take it with him. documents when he left office.
Mr Evan Corcoran, a white-collar lawyer and former federal prosecutor recruited by Mr Trump, was involved in drafting the document, according to two people informed. Mr Corcoran also represented Stephen K. Bannon, an ally of Trump who has been accused by the Justice Department of refusing to co-operate with a House of Representatives committee investigating the January 6 attack.
Mr Corcoran and a spokesman for Mr Trump did not respond to a request for comment.
The statement came during a week in which House of Representatives hearings led to a potential criminal and civil denunciation of Mr Trump, highlighting the testimony of aides and advisers documenting what he was told and when about the validity of his allegations of electoral fraud and the legitimacy of his retention strategy.
The topics of the hearings of the committee of the House of Representatives on January 6
At its third hearing on Thursday, the commission built a case in which Mr Trump threw himself forward with a plan by Vice President Mike Pence to unilaterally cancel the 2020 election, although Mr Trump was told there was no legal basis.
The Justice Department is investigating a number of elements of the Capitol riot and the wider efforts of Mr. Trump and his allies to preserve the White House despite the victory of Joseph R. Biden Jr. Attorney General Merrick B. Garland has not given public indications that the department is building a case against Mr. Trump, who has long argued that investigations into the January 6 attack were partisan and unfounded and whose side of history is not represented in parliamentary hearings. commission.
But the commission’s investigation has already generated evidence that could increase pressure on Mr Garland to act more aggressively, a course of action that would have far-reaching legal and political consequences. At the urging of the Ministry of Justice, the chamber’s commission has signaled in recent days that it will begin sharing some transcripts of its interviews with witnesses with federal prosecutors as early as next month.
In a civil case involving the commission, a federal judge ruled in March that Mr Trump and his adviser, John Eastman, were likely to have committed crimes in an attempt to cancel the election. “The illegality of the plan was obvious,” said Judge David O. Carter of the Federal District Court of the Central District of California.
Judge Carter cited two crimes he said the two men were likely guilty of: conspiracy to defraud the United States and obstructing congressional proceedings. Members of the House of Representatives committee have made similar proposals, and some lawyers have argued that Mr Trump may also be vulnerable to charges of rebellion.
But the successful prosecution of potential allegations made by Judge Carter and others may depend on establishing Mr Trump’s intent – an issue his statement last week appears to address, arguing that he believes his challenges to the outcome based on legitimate questions about the conduct of the elections.
Daniel L. Zelenko, a white-collar lawyer and former federal prosecutor, said that for all the potential crimes being considered in connection with Mr Trump’s behavior, the Justice Department would have to show that he intended to commit crime. Mr Zelenko said that while the new details revealed by the commission would help prosecutors prove intent, the government still has a number of other problems it needs to tackle in prosecuting.
“The key is to have evidence that he says he knew the election was not stolen, but he still tried to stay in power,” said Mr Zelenko, co-chair of the White Collar Protection Practice. in Crowell & Moring. “The problem with Trump is that you have to try to get into his mind, and he has such a history of lies and lies that it’s hard to determine what he really believes.
In addition to the evidence already revealed by the commission, the group has received other testimonies that undermine Mr Trump’s claim that he believes he really won the election. According to two people briefed on the issue, Alice Farah Griffin, director of communications at the White House in the post-election days, recently testified before the commission that Mr Trump told her in November 2020 words such as: Can you believe it? that lost by Mr. Biden?
In a television 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 after the election.
“He told me shortly after that he knew he had lost, but then, you know, people surrounded him,” Griffin told CNN, citing outside advisers who made false allegations of election fraud. . “They got information in front of him, and I think his opinion may have changed about that, and that’s scary because he really lost, and the facts are there.”
Samuel W. Buell, a law professor at Duke University and a former federal prosecutor, said any criminal case against Mr Trump would have to begin with establishing that he knew what he was doing was wrong.
“You have to show that he knows that what he is doing is illegal and has no legal basis,” he said. “I’m not saying he should think: what I’m doing is a crime. This proves: I know that I have no legal argument, I know that I lost the election, but I continue with a statement that is known to be untrue and a scheme that has no legal basis.
The hearings of the committee of the Chamber are not a court process. The panel is free to choose what testimony it uses to build a case against Mr Trump, and the former president has no allies in the committee to question witnesses or provide useful information.
But the hearings highlighted a series of witnesses who said Mr Trump had been told directly and repeatedly before Jan. 6 that there was no basis for his claims that election fraud cost him his re-election.
And the committee presented brief but potentially crucial testimony from Mr Pence’s chief adviser, Greg Jacob. In his testimony, Mr Jacob told the committee that Mr Trump had been told on 4 January 2021 by Mr Eastman – who was pushing for a plan for Mr Pence to block or postpone the certification of the Electoral College – that the scheme would violated the Census of Elections Act, the federal law governing the process.
In investigations that focus almost exclusively on physical acts, such as assaults, robberies and murders, prosecutors should not focus on proving intent, as the link between action and harm is usually clear.
However, the question of intent may be vague when the crime under investigation involves an act which makes it difficult to establish the defendant’s state of mind. The crimes that legal experts say Mr Trump may have committed – obstruction of Congress, deception of the American people and rebellious conspiracy – fall into this bucket.
In these cases, the government faces a number of obstacles that it must overcome to prove its intent. The purest way is to find evidence that the defendant knew he was doing something wrong.
In Mr Trump’s case, lawyers said, this could take the form of direct evidence that he knows that his allegations of widespread election fraud are baseless or that he knows the strategy he is following is illegal.
If the Department of Justice cannot establish direct evidence of what Mr. Trump knew, prosecutors will have to turn …
Add Comment