Indictment Watch: A Difficult Case Against Trump

Waiting for a really good lightning strike.

By and
249

Special counsel Jack Smith brings another round of charges against Donald Trump, this time concerning the former president’s attempts to subvert the results of the 2020 election. How does this indictment compare with the previous two? Will prosecutors be able to prove Trump was knowingly lying about the election? Does the indictment change anything for Trump? And is the country ready for this trial? Plus:

-Naming the co-conspirators

-Weighing up the other indictments

-Trump’s campaign boost

-An encouraging end note on our justice system

Show Notes:

–The Collision newsletter

-David’s column for the New York Times

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Comments (249)
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  1. Austin302

    The "intent" requirement does not require the prosecution to offer evidence that Trump admitted that he lost the election. Instead, circumstantial evidence can be used to prove Trump's corrupt and fraudulent intent. For just one of many authorities on this, here's the Tenth Circuit in U.S. v. Prows (118 F.3d 686, 692 (10th Cir. 1997), quoting a law journal):

    "Because intent involves the defendant's state of mind, and is difficult to prove directly, it is usually proven by circumstantial evidence. A variety of circumstantial evidence has been held relevant to infer fraudulent intent."

    This makes sense because we can't expect prosecutors to show the jury records of admissions of guilt from all defendants in all specific intent cases. We don't require evidence that a fraudster said, "I'm just pretending to work for the credit card company," or that a kidnapper said, "I know I'm not allowed to take this child," or that murderer shouted, "I declare malice aforethought!" Instead, prosecutors can point to circumstantial evidence and argue that a reasonable person in the defendant's position would know they were doing something wrong - i.e., "The defendant never worked for the credit card company, so the defendant MUST HAVE KNOWN that they weren't entitled to collect payments from customers," or "The defendant was sitting in the courtroom when they lost custody rights, so they MUST HAVE KNOWN they weren't allowed to take the child," or "The victim was lying helplessly on the ground, so the defendant MUST HAVE KNOWN that killing them was not necessary for self-defense."

    Likewise, the legal standard for Trump is what an objectively reasonable person* would have known if they were in Trump's CIRCUMSTANCES, i.e., if they were told everything Trump was told about the election. Although it would be nice if Trump admitted he lost, Smith isn't required to offer evidence that Trump acknowledged the truth, verbally or otherwise.

    *Even though Trump acts like an unreasonable person and may in fact be an unreasonable person, he's not entitled to be treated by the jury as an unreasonable person unless he offers an insanity defense. That raises an interesting hypothetical: If Trump's lawyers submit to the court a sworn affidavit from a psychiatrist, who concludes after a thorough examination that Donald Trump can't take responsibility for his actions because he is insane, would that hurt his poll numbers in the Republican Primary?

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    Bill Dyer (aka Beldar)

    I love this, and flag it for notice by Ms. Isgur & Mr. French: "John Eastman, awaiting potential indictment, asks judge to postpone his disbarment proceedings."

    link: https://www.politico.com/news/2023/08/07/eastman-trump-disbarment-postpone-00110131

    Think about this for 10 seconds. It's a lawyer, accused of being a very BAD lawyer and trying to hold onto his bar card, asking that the bar's lawsuit to strip him of his license be put off ON GROUNDS THAT HE'S ALSO POSSIBLY A CRIMINAL, and has just been referenced an unindicted co-conspirator in a federal criminal indictment of his client.

    The proceedings should go forward. He should take the Fifth, but won't. Smith's team will be watching.

    As is true also for his former client, John Eastman's own criminal jeopardy grows every time he opens his mouth or sets fingers to keyboard.

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  3. Liquidvacation

    Caught Sarah spreading the Bucket Gospel on Checks and Balance from the Economist like "well, YEAH, of COURSE!" I try to avoid echo chambers but a little reverb is comforting from time to time...

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  4. General Darden

    Doesn't the question really go to what Trump considered a "lie"? Isn't that the basis of intent? You have to show he sometime, somewhere, somehow admitted he had been beaten. I have never seen that reported (not that everything gets reported).

    I would offer this as his defense instead - and one which might keep him out of jail but would tarnish his reputation. Trump is a narcissist. His perception of reality is whatever will make him look his best. That is not always rooted in rational action or thought (e.g., calling a letter from North Korea "beautiful" or stating he believed Putin when Vlad says Russia was not involved in the 2016 election). Rather, his behavior is best-explained by whatever is (A) self-preserving and (B) self-importance reinforcing. It is a classic ends-justifying-the-means mentality. If you can prove that he believed what he was saying, is it a lie? And if he did not believe it to be a lie, can you demonstrate culpability? I don't believe that this is just a momentary lapse, either: it is who he is. The public record of his statements over time reinforces that.

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  5. Mkliegman

    Question for both but especially David: If the “conspiracy to defraud the US government” charge is valid, how is it not going to be applicable to instances where a politician or activist (OK, two of them acting in concert) engages in demagoguery with knowingly false statements, with a view to influencing public opinion and/or governmental action?

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    1. General Darden

      Agree! So, therefore, Sen Schumer (and his Senate colleagues who stood with him) is guilty of the same when he stood on the steps of the Supreme Court and swore revenge on the Court if Roe was overturned? Are Rep Schiff and Rep Swalwell guilty of defrauding the government when they each said there was enough "there there" to clearly and undeniably link Trump to Russia? They made either knowingly false statements to sway public opinion, and/or in the case of Schumer, to incite violence.

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  6. Mary Stine

    So, you want someone to make the case for Joe Biden? Alrighty, here goes:
    1.) Three groups of "swing"voters are much more highly disposed to consider Biden: voters the age of his grandchildren, women voters ,and independents (who are both exhausted by Trump).
    2.) A large bloc of Republican voters are older men and veterans. While a good portion of those are likely Trump voters, there's a group disgruntled by the actions of Trump and his publicity seeking family and sycophants. These men will be listening to what the military top brass will say about Trump if they appear at trial. Besides, we all know Grandpa is more likely to listen to his age group's advice than any other. There's a reason Biden references himself as a Grandpa who's not ashamed of his age.
    3.) Biden has been around Washington a long, long time. He knows where all the bodies are buried and what
    skeletons reside in what closets and where. Most of the Senate and a lot of the House have been around with him. He may not be everyone's favorite person, but I'll bet most of of his Senate colleagues trust him to be fair and reasonable. No one else on the Democrat side can call up Republicans and get them to pick up the phone
    90% of the time. Voters are not unaware of this.
    4.) Biden doesn't speak disrespectfully of government employees or the military. Now, ask yourself what percentage of Americans either work in government jobs or serve in the military. Of course, there will be a number of conservatives and Republicans in both, but as my retired Navy uncle says " I may be a Republican but I don't have to vote stupidly!!" Trump and DeSantis repeatedly speak of government employees with great derision. Per the ones I know, this is not lost on them. And it is not lost on many former military members that Trump wanted to use them against their fellow citizens.
    5.) Biden is able to make connections with working people that few others on the left achieve. He's able and willing to talk warmly and respectfully to ordinary working people and he has legislation to back up his belief in them. Covid relief, insulin price relief and infrastructure jobs will not be forgotten by the people for whom those were lifesaving.
    6.) In contrast to Trump, Biden is open about his struggles with his shortcomings ( stuttering, for example) and his struggles, notably with his drug addicted son. The percentage of his fellow Americans also struggling with some disability as well as an addicted family member is probably well over 50 %. This might actually be an advantage for Biden, as otherwise hostile voters might have some alliance and sympathy with him.
    7.) Biden, by all accounts, has a stable and loving relationship with his wife, Dr. Jill Biden, a dependable campaigner and ally who is not shy .
    8.) Last, but not least, for all his faults, fabrications and other shortcomings, Biden has been resolutely and consistently a defender of the Constitution and our Founding. His patriotism seems genuine and touching.
    This may be his most important quality and the thing that most distinguishes him from his opponents, whose avowed purpose is to tear down all our institutions. Voters have only to ask themselves this question "Who do you trust most to preserve our Constitution as it has stood through our history?" The answer cannot be the guy who wraps himself in the flag but advocates twisting or subverting the Constitution to his own purposes.

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    1. Francislyo

      Well articulated, Mary! Your main point nails it: "Biden has been resolutely and consistently a defender of the Constitution and our Founding. His patriotism seems genuine and touching.
      This may be his most important quality and the thing that most distinguishes him from his opponents, whose avowed purpose is to tear down all our institutions. Voters have only to ask themselves this question "Who do you trust most to preserve our Constitution as it has stood through our history?" "

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    Ralph S

    I don't think Trump accidentally engaged in trying to overturn the 2020 election results. It was purposeful regardless of his state of mind. That is where the violation occurs. If he believed there was fraud, there are other avenues - legal avenues - with which to protest. Making an end run around the prescribed formal processes is not supportable.
    If someone mistakenly breaks into your apartment at night but is truly mistaken for it being his own a violation has still occurred. Sentencing may be affected. But those inside the violated space still have rights that someone should have respected.
    This whole notion of this new indictment hinging on Trump's state of mind seems very misdirected.

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  8. Kipling_Sapling

    David mentioned he voted third-party for president last time. I'm curious, who did he vote for?

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  9. Kmsinatra

    @Sarah -- Great to hear you on the Economist - Checks and Balances podcast!!

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  10. Teddy41

    Hi Sarah,
    As someone who should have gone to law school I've always loved the AO podcast despite Jonah and Steve's derision. I listened to this one twice because I found the debate so interesting.
    I did have two slightly off the wall questions. 1) Could the defense lawyers use the fact that DoJ is currently suing Georgia over its election laws and multiple Democratic politicians since 2018 have questioned the validity of Georgia's ejection as rebuttal evidence at trial?
    And, 2), since Trump was not charged with any crimes relating to Jan 6, will the defense be able to exclude any mention of the events of that day?

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