Mr. Trump’s claim to have won the 2020 election, “and frankly, by a lot,” friends argued to me across a lunch table in Jackson are “just his opinion… free speech.” Sure, I said, but Prosecutor Jack Smith took care in his election interference indictment to explain Mr. Trump’s criminal problem is not by itself speech. His legal problem, the indictment plainly says, is that after his lawyers exhausted all lawful means to challenge his election loss, Mr. Trump turned to unlawful means.
To be certain, Prosecutor Smith has a heavy burden to show Mr. Trump acted “corruptly,” with knowing unlawful intent. Mr. Trump to this day displays strenuous belief the election was stolen. He means it. As Aaron Blake of the Washington Post wrote over a year ago, “a trip through the defendant’s mind still cannot be avoided.” (WPO June 21, 2022).
For all that, one legal expert, Burt Neuborne of the NYU Law School, wrote recently: “there’s a good chance Trump will be found ‘willfully blind’ to the truth of his election loss because the best authorities told him over and over again his election fraud claims were false.” (NYT Aug 28, 2023). Of all Justices it is conservative Sam Alito who some years ago provided the key Court opinion. Alito concluded of willful blindness to truth, “defendants who behave in this manner are just as culpable as those who have actual knowledge.” (Global-Tech v. SEB, 563 US 754 (2011)).
Smith’s indictment lists a string of government officials in charge of investigating the election he can call to the stand. All warned Mr. Trump his re-election bid was lost. The list starts with Mr. Trump’s Vice President, Mike Pence.
Pence told Mr. Trump Christmas Day, 2020: “You know I don’t think I have the authority to change the outcome.” The Constitution states the electoral votes “shall be counted” after the election on a single day, January 6. No other. The Electoral Count Act (ECA) states the VP can count only electors officially ascertained as signed by state governors. So, on New Year’s Day 2021, Pence again told Trump it was improper for him to delay or change the electoral count. Mr. Trump responded, “You’re too honest.” For Smith, Trump’s statement demonstrates his unlawful intent. On the critical morning of January 6, 2021, Pence once more refused Mr. Trump. So, later in the day Mr. Trump publicly turned up the heat on Pence, telling the crowd at the Ellipse the VP could at least turn to Republican state legislatures of swing states to decide the election. Pence countered with a statement issued at 1:00 pm he did not have the “unilateral authority.” At 2:24 pm, in the face of violent assault on the Capitol, Mr. Trump tweeted: “Mike Pence didn’t have the courage to do what should have been done to protect our Country.” The effect was immediate. The indictment states: “one minute later, at 2:25 pm the Secret Service was forced to evacuate the Vice President to a secure location.”
The indictment moves on to Mr. Trump’s facing off with other federal and state officials who all told Mr. Trump his election claims were false. First are the 60 Judges who found Mr. Trump’s lawyers failed to establish his claims. Then the indictment lists the warnings of Attorney General Bill Barr (who told Mr. Trump that Justice determined the claims were “bullsh*t”); of Barr’s successor, Acting AG Jeffrey Rosen; of Deputy AG Richard Donoghue; of WH counsel Pat Philburn (who famously told Mr. Trump January 3, 2021, “there is no world, there is no option in which you do not leave the White House on January 20”); of Miles Taylor, head of Homeland Security’s Cybersecurity Agency (CISA) (who publicly announced government experts found no evidence of computer-based fraud, causing Mr. Trump to fire him); of the Trump Campaign’s senior staff (who had told Mr. Trump back on November 7, 2020, he had only a five to ten percent chance of winning the election); and in Arizona warnings the claims were false from Republican House Speaker Rusty Bowers; in Georgia from Republicans Governor Brian Kemp, Lt. Gov. Geoff Duncan, Secretary of State Brian Raffensperger, and House Speaker David Ralston; in Michigan from Republicans House Speaker Lee Chatfield and Majority Leader Mike Shirkey; and in Pennsylvania from four Republican leaders of the legislature (who, having said they had no authority to overturn the popular vote, Mr. Trump tweeted were “cowards.”)
Even so, the indictment states Mr. Trump was “determined to remain in power.” Smith describes an unrelenting diary of Mr. Trump’s daily actions to advance fake elector schemes conjured by attorneys Kenneth Chesebro, John Eastman, and Rudy Guiliani, and the voting machine ploys of Sidney Powell (who Pence referred to as “crackpot lawyers.”) Even Mr. Trump admitted Sidney Powell “appeared crazy.” The four lawyers are now under review for dishonesty and possible disbarment.
As I told my luncheon companions, Jack Smith will show a jury Mr. Trump knew better. Mr. Trump’s lawyers will contend he is sane enough and believes it. Prosecutor Smith can show willful blindness is no defense in the face of so much truth telling by his own governmental officials responsible to determine election facts.
Robert P. Wise is a Northsider.
