Ever since Donald Trump began claiming that he was the victim of "a major fraud" in the 2020 presidential election—which he started doing on Election Day, while votes were still being tallied—his sincerity has been open to debate. Did he really believe the nonsense he was spouting, or was it all part of a clever populist strategy? That question is of keen interest to political junkies and armchair psychologists. It is also central to Special Counsel Jack Smith's investigation of whether Trump committed federal crimes by trying to overturn Joe Biden's victory.
Based on information from "four people briefed on the matter," The New York Times reports that the Washington, D.C., grand jury convened as part of Smith's investigation recently heard testimony about whether Trump "privately acknowledged in the days after the 2020 election that he had lost." One of the witnesses was Trump's son-in-law Jared Kushner, who reportedly said "it was his impression that Mr. Trump truly believed the election was stolen."
That impression is consistent with a plausible account of why Trump embraced one wild charge after another while insisting that he actually won reelection (a position to which he still publicly clings): His inflated yet hypersensitive ego could not survive an admission of defeat, so he desperately latched onto any claim, no matter how implausible or unsubstantiated, that reinforced his self-image as a winner. The details did not matter; the main point was that he could not possibly have lost.
Nor did it matter that several of Trump's advisers, including his attorney general, viewed his claims of systematic election fraud, involving deliberately corrupted voting machines and massive dumps of phony ballots, as completely unfounded. Trump instead listened to advisers like Rudy Giuliani, Sidney Powell, and John Eastman, who said what he wanted to hear: not just that Biden had stolen the election but also that the situation could be legally remedied through litigation, appeals to state officials, slates of "alternate" electors, objections by Republican legislators, and Vice President Mike Pence's intervention during the congressional tally of electoral votes on January 6.
The alternative explanation is that Trump cynically promoted the tall tale that Giuliani and Powell were telling, even though he knew he had lost the election, as a way of reinforcing the ardor of his most passionate supporters. According to that view, it did not matter whether there was any realistic hope of changing the 2020 outcome. The main point was maintaining Trump's domination of the Republican Party and setting him up for another run in 2024.
The difference between these dueling accounts is legally significant because it goes to Trump's state of mind when he pursued the tactics recommended by Giuliani et al. Was he honestly trying to correct what he mistakenly viewed as a grave injustice, or was he knowingly perpetrating a fraud?
The House select committee that investigated the January 6 Capitol riot by Trump's supporters recommended several criminal charges against the former president, all of which hinge on his intent. The committee, for example, thought Trump should be prosecuted for conspiring to "defraud the United States," a felony punishable by up to five years in prison. That charge is viable only if Trump recognized that his election claims were false.
The committee also thought there was enough evidence to charge Trump with obstructing an official proceeding (i.e., the congressional certification of Biden's victory), a felony punishable by up to 20 years in prison. To convict Trump of that charge, prosecutors would have to prove beyond a reasonable doubt that he acted "corruptly," which may be difficult.
Trump maintains that he was pressing a grievance he believed was well-founded through means he thought were legitimate. That is consistent with the advice he received from Eastman, a law professor who conceded that enlisting Pence to delay or block congressional validation of the election results would violate the Electoral Count Act but argued that the statute was unconstitutional. The question is not whether Biden actually stole the election or whether Eastman was right but whether Trump honestly believed those things.
"You need to show that he knew what he was doing was wrongful and had no legal basis," Duke University law professor Samuel Buell, a former federal prosecutor, told the Times last year. While prosecutors would not have to show that Trump understood he was committing a specific crime, Buell said, they would need to make the case that he knew he had lost the election, recognized that he did not have a valid legal argument, and decided to proceed with "a known-to-be-false claim and a scheme that [had] no legal basis."
Trump's private statements to advisers such as Kushner could support or undermine that case. "The key is having contemporaneous evidence that he was saying that he knew the election was not stolen but tried to stay in power anyway," Daniel Zelenko, a white-collar defense lawyer and former federal prosecutor, told the Times. "The problem with Trump is that you have to try and get inside his mind, and he has such a history of lying and pushing falsehoods that it makes it difficult to determine what he really believes."
Another complication is that Trump's view of the election results may have shifted over time, perhaps more than once. While it seems clear from his angry, rambling, incoherent, and boastful Election Night speech that Trump's immediate instinct was to cry fraud, some insiders have said he later admitted he had lost.
Alyssa Farah Griffin, who was the White House communications director at the time, told the January 6 committee and federal prosecutors that Trump said something like this shortly after the election: "Can you believe I lost to Joe Biden?" Although that question is open to interpretation, Griffin saw it as an admission of defeat. "In that moment," she testified, "I think he knew he lost."
In a 2021 CNN interview, however, Griffin conceded that Trump may have subsequently changed his mind. "He told me shortly after that he knew he lost, but then, you know, folks got around him," she said. "They got information in front of him, and I think his mind genuinely might have been changed about that, and that's scary, because he did lose, and the facts are out there."
Joint Chiefs of Staff Chairman Mark Milley gave a similar account. During a meeting in late November or early December, he told the committee, Trump casually referred to Biden as "the next guy" and acknowledged that "we lost." But in subsequent meetings, Milley said, Trump began pushing the stolen-election narrative: "It wasn't there in the first session, but then all of a sudden it starts appearing."
By early December, a newly revealed text message shows, Trump's lawyers were acting on an "urgent POTUS request" for the "best examples of 'election fraud' that we've alleged." Trump lawyer Boris Epshteyn asked for "any sort of 'greatest hits' clearinghouse that anyone has for best examples," which he said did not "necessarily have to be proven" as long as they were "easy to understand."
The shift described by Griffin and Milley could be evidence that Trump deliberately misled his supporters, making claims he did not believe. Or it could be evidence that "folks got around him," as Griffin put it, and persuaded him that his initial reaction—that Biden could have won only thanks to "a major fraud"—was well-grounded.
Former Attorney General William Barr, who says he repeatedly told Trump his election fraud claims were "bullshit," told the January 6 committee that Trump never gave any "indication of interest in what the actual facts were." That account is consistent with willful deceit, but it is also consistent with an unshakable belief in an ego-salving fantasy.
There's a similar ambiguity in Trump's notorious January 2 phone conversation with Georgia Secretary of State Brad Raffensperger, during which Trump pressed Raffensperger to "find" the votes that would be necessary to change the election outcome in his state. Trump flitted from one unsubstantiated fraud allegation to another, including one he admitted was just a "rumor," and was clearly frustrated by Raffensperger's patient refutation of each claim. Depending on which explanation of Trump's behavior you favor, he was either soliciting election fraud (a charge that Fulton County District Attorney Fani T. Willis is investigating) or asking Raffensperger to rectify a supposedly fraudulent result.
After following Trump's election claims for nearly three years, I am still not sure whether he drank his own Kool-Aid. But to avoid Trump's conviction on federal or state charges based on his refusal to accept the election results, his lawyers need only establish a reasonable doubt as to whether he was deceitful rather than deluded.
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