The biggest misconception about Trump's third criminal indictment

Former President Donald Trump (R) in Des Moines, Iowa on July 28, 2023 (Photo by SERGIO FLORES/AFP via Getty Images)

On Tuesday, former President Donald Trump was charged with four felony counts related to his efforts to overturn the legitimate results of the 2020 presidential election. The indictment accuses Trump of "conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding." It is the third time Trump has been criminally charged since leaving the White House. 

Trump's lead attorney on the case, John Lauro, immediately appeared on Fox News and laid out his defense strategy. Lauro said that special prosecutor Jack Smith and his associates would be required to "prove beyond a reasonable doubt that Donald Trump believed that these allegations were false." In other words, Trump is not a criminal; he's just delusional. 

Unsurprisingly, this frame was immediately embraced by Fox News pundits. "You can’t get inside his head!" Brian Kilmeade exclaimed on Fox & Friends. Co-host Ainsley Earhardt said that Smith needs "to prove that [Trump] actually believed that he lost, because you’re allowed to question an election."

Nominally anti-Trump conservative publications are toeing the same line. The editors of the National Review write that the case requires prosecutors to "prove beyond a reasonable doubt that Trump hadn’t actually convinced himself that the election was stolen from him (good luck with that)." 

The argument has also been adopted as fact by mainstream sources. The Washington Post claims a "threshold question" in the case is whether Trump "knew that the false things he said were false." Axios reports that "[p]roving that Trump pushed theories of voter fraud that he knew were false will be key to prosecutors' efforts to convict Trump." The New York Times writes that "[e]stablishing that Mr. Trump knew he was lying could be important to convincing a jury to convict him." CNN says "that there will be a burden on prosecutors to prove definitively that [Trump] knew the fraud claims were wrong."

The problem with this analysis is that it is wrong. 

The indictment demonstrates that Smith has collected voluminous evidence showing that Trump knew he was lying. But a successful prosecution does not hinge on what Trump believed about the 2020 election. If Trump is convicted, it will be based on his actions. 

The indictment makes clear from the outset that Trump "had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won." If all Trump did was lie, there would be no indictment. But Trump didn't just lie. Trump, working in concert with his co-conspirators, "pursued unlawful means of discounting legitimate votes and subverting the election results." 

The indictment alleges that Trump participated in three conspiracies that violate three federal statutes: obstructing the process by which "the results of the presidential election are collected, counted, and certified by the federal government," obstructing "the January 6 congressional proceeding," and interfering with "the right to vote and to have one's vote counted." Each of the conspiracies is based on the same overall narrative. 

Much of the evidence to establish that Trump violated each statute does not depend at all on whether Trump believed his lies. For example, the efforts of Trump and his co-conspirators to cling to power by creating a fake slate of pro-Trump electors is a key piece of the case against Trump. Trump and Co-Conspirator 2, who has been identified as lawyer John Eastman, "called the Chairwoman of the Republican National Committee [Ronna McDaniel] to ensure that the plan was in motion." Eastman "falsely represented to her that such electors' votes would be used only if ongoing litigation in one of the states changed the results in the Defendant's favor." (According to the indictment, many of the fake electors were told the same thing.) Trump's efforts resulted in "fraudulent electors convened sham proceedings in the seven targeted states to cast fraudulent electoral ballots" in favor of Trump. The campaign lost all of its cases challenging state results but, despite what Eastman promised McDaniel, "the targeted states' fraudulent elector certificates were mailed to the President of the Senate, the Archivist of the United States, and others."

This scheme alone, if proven in court, would likely be enough to substantiate all four felony charges. And it has nothing to do with whether Trump believed (or still believes) he won the 2020 election. Even if Trump believed with all his heart he actually won Arizona despite the vote count, that does not make it legal for him to conspire to create a fake set of electors to disrupt the certification process and the January 6 congressional proceeding. That is illegal regardless of what he believes. 

In an interview with Popular Information, Marc Elias, one of the nation's most prolific and experienced election attorneys, explained how the law works with an analogy:

I walk into a bank, and I think they are wrongfully holding my money. I think my balance is $5,000, and they think my balance is zero. And I genuinely believe that I am owed $5,000. That doesn't excuse me from robbing the bank. I can't pull out a gun and take the money. Particularly with the fake electors scheme, even if you believed that you won, you were not entitled to have people submit fake forms on January 6.

Elias noted that he has had clients who "genuinely believe in close elections that they've won," but that belief "doesn't give them license to undermine the process of free and fair elections." They are limited to courses of action that comply with the law, like filing a lawsuit seeking a recount. 

Similarly, other key aspects of the indictment do not depend on what Trump believed. The indictment alleges that Trump and his co-conspirators pressured Department of Justice officials to issue a statement asserting that the Department had "identified significant concerns that may have impacted the outcome of the election in multiple States[.]" Trump may have believed fraud impacted the outcome in multiple states. But the issue is not what Trump believed; it's what the Department believed. Trump was told by the Acting Attorney General that the Department had not identified any "significant concerns" but pressured them to send the statement anyway. "Just say that the election was corrupt and leave the rest to me and the Republican congressmen," Trump told the Acting Attorney General, according to the indictment. 

So if Smith does not need to prove that Trump knew he was lying, why does he spend so much time in the indictment documenting that Trump knowingly lied? Elias explained that, in a criminal trial, the government "does not need to prove motive." The jury, in fact, will receive an instruction stating that the government does not need to establish a motive for the defendant's alleged crimes. Nevertheless, "the jury wants to hear a motive, so the government always tries to prove motive." In this case, Smith is attempting to establish that Trump was motivated by a corrupt desire to remain in power even though he knew he lost. 

Smith, by the way, has uncovered a lot of compelling evidence that Trump knew he was lying. In addition to all the people who told him there was no evidence of fraud, Trump privately acknowledged he was not being truthful. At one point, according to the indictment, former Vice President Mike Pence told Trump that Pence had no legal authority to overturn the election while he performed his ceremonial role of receiving the electoral college votes. "You're too honest," Trump replied. 

But, despite what you might have read or heard elsewhere, Smith's effort to establish a motive is not a legal necessity; it's a trial tactic. 

You can read more analysis on the latest Trump indictment from Marc Elias here.