It Doesn't Matter Whether or Not Trump Believed He Lost. Here's Why.

Being delusional is not a defense

Shortly after former president Trump was indicted for his efforts to overturn the 2020 presidential election, his lawyers and supporters began previewing his potential defenses. One argument you will regularly hear is that Trump lacked criminal intent because he honestly believed there had been widespread voter fraud and that he won the election. 

On Fox News, Trump attorney John Lauro suggested the prosecution’s inability to prove Trump believed he lost would be fatal to its case: “I would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations [that the election was stolen) were false.” In a column titled “Why the Trump Jan 6 Indictment Will Fail,” conservative columnist Hugh Hewitt claimed the key legal issue in the case will be, “What did the president believe and when did he believe it?”

Like some creature from a B horror movie, the notion that Trump can’t be guilty if he honestly believed he won the election keeps rising from the dead and walking among us. It’s time to bury it once and for all. Prosecutors do not need to prove Trump believed he lost the election at all, much less prove it beyond a reasonable doubt.

Being Delusional Is Not a Defense

Suppose I believe I’ve developed a cure for baldness that I call “Curlylocks”. I’m personally convinced that it works and that it allowed me to grow a luxurious head of hair after being bald for years. I also have a couple of friends – maybe they even happen to be lawyers -- who tell me they too are convinced that it works. But sixty-three scientific studies have been done, and they all concluded Curlylocks has absolutely no effect on baldness. There are no contrary studies showing that it is effective. A dozen of my closest advisors, who include scientists and medical experts, also have told me that it doesn’t work.

Undeterred, I create a website and market Curlylocks to men across the country at $1,000 a bottle. Despite the lack of any factual basis, I claim in my advertising that it will cure baldness – “It works wonders – I personally guarantee it!” Thousands of customers, relying on my marketing, purchase a bottle.

When I am prosecuted for defrauding those who relied on my representations and sent me their money for a worthless product, my claim that, “But I really believed it worked!” will not be a defense.

Being delusional is not a defense to fraud. In law, if not always in politics, facts still matter. If a person makes representations to someone intending that they will rely on them and act in response, there needs to be some basis for those representations. If this were not true, any defendant in any fraud case could evade prosecution simply by claiming they honestly believed their own baseless claims, regardless of the evidence.

Likewise, even if Trump sincerely believed he won the election, that would not negate the evidence that he conspired to corruptly obstruct the Congressional proceeding to certify the vote or to disenfranchise voters. Believing his cause was righteous would not entitle him to use unlawful methods to respond. Indeed, even if there was widespread voter fraud, that wouldn’t mean Trump could commit other crimes with impunity as a response.

Suppose a grand jury is investigating me for tax fraud. I honestly believe I did nothing wrong and that the investigation is politically motivated. If the grand jury subpoenas my files and I shred them rather than turn them over, my sincere belief in my innocence will not be a defense to obstruction of justice. I’m not allowed to commit crimes in response simply because I believe my cause is just.

Don’t Confuse Intent with Motive

Arguments that prosecutors must prove Trump believed he lost confuse intent with motive. In the above hypothetical, my motive in shredding my files in response to the grand jury subpoena may have been my sincere belief that the investigation was unjust. That would not negate my criminal intent to obstruct the grand jury investigation through unlawful means.

Unlikely as it is, Trump’s motive could have been his honest belief that the election was stolen from him. That still would not negate his criminal intent when he responded by participating in illegal conspiracies to overturn the election results.

Prosecutors don’t have to prove motive. They often present evidence of motive because it helps tell a more complete story of the case and explain why the defendant did what he did. But it’s not an element of a criminal offense and not something prosecutors must prove beyond a reasonable doubt.

Trump may have irrationally believed, despite all evidence to the contrary, that he won the election. But prosecutors don’t have to prove he didn’t really believe that as part of their case.

Don’t Confuse Belief with Knowledge

People can believe whatever they want – this is America, after all. I can believe in the tooth fairy, or that the moon landing was faked, or that the earth is flat. But that doesn’t mean my beliefs can shield me from criminal liability for my actions. Legal knowledge of something is not the same as personal belief.

The law recognizes a doctrine called willful blindness. A defendant cannot deliberately close his eyes to the facts around him and then claim he didn’t know the truth. Even when prosecutors lack direct evidence of a defendant’s knowledge (such as a confession or smoking-gun email) they can prove knowledge by willful blindness.

Suppose I’m a banker and a new customer pulls up to my bank in a brand-new Mercedes. He has no proper identification, no fixed address, and no job. He drops a duffle bag on my desk containing $100,000 in 10 and 20 dollar bills, some of which appear to be faintly dusted with a white powder, and asks me to open a bank account in his dog’s name. I oblige when he offers to tip me $1,000 in cash for my trouble.

When I’m later charged with money laundering, I might say, “Hey, I didn’t KNOW it was drug money – I mean, he never told me that.” But a jury would be entitled to find my knowledge those were criminal proceeds based on my willful blindness.

Lawyers sometimes call the jury instruction on willful blindness the “ostrich instruction.” It’s based on the claim that an ostrich will bury its head in the ground to avoid seeing danger nearby, thinking that if it can’t see its problems that means they don’t exist. (Apparently this is a myth and the instruction’s name is thus a great libel against ostriches, but nevertheless it persists.) The ostrich may honestly believe that if it can’t see the lion the lion isn’t there, but that won’t prevent it from becoming lunch.

Regardless of any claims about Trump’s personal beliefs, a jury will be entitled to find that he knew he lost the election and knew his claims about voter fraud were false, even if he buried his head in the sand and denied reality. Again, being delusional is not a defense.

The Evidence of Trump’s Knowledge

Special counsel Jack Smith does appear confident he can prove Trump knew he lost. The indictment goes into great detail about how Trump was told repeatedly – “often by the people on whom he relied for candid advice on important matters, and who were best positioned to know the facts” – that there was no voter fraud. It describes how the courts uniformly rejected his arguments. When he insisted to state officials that their election was flawed, they repeatedly told him they had investigated and there was no evidence to support his claims.

As for the handful of people who might have been whispering contrary claims in Trump’s ear, well, most of them are identified as participants in the illegal conspiracies. Any defense that tries to demonstrate your innocence by relying on what your alleged co-conspirators told you is going to face a bumpy road.

The evidence described in the indictment will set prosecutors up to make a classic closing argument about Trump’s knowledge. “Ladies and gentlemen, he knew he lost. We have presented overwhelming evidence that he in fact knew he lost. There is no reasonable doubt about that. But at the very least, there is no doubt at all that this evidence shows the defendant was willfully blind to the truth – and that’s enough.”

As the indictment says right up front on page 2, if Trump believed there was election fraud he had the right to speak publicly about it, even to lie about it. He also had the right to use lawful means to pursue his claims, and he did — filing dozens of lawsuits, which uniformly found the claims had no basis.

But Trump believing his cause was just would not entitle him to conspire to pursue unlawful remedies. It wouldn’t allow him to pressure state officials to throw out lawful votes, “find” new ones, and alter their election results with no factual basis. It wouldn’t allow him to cause illegitimate electors to sign certificates falsely claiming Trump had won their state and send those certificates to Washington. And it wouldn’t allow him to summon an angry mob to Washington, unleash them on the U.S. Capitol to disrupt the business of Congress, and do nothing to intervene for three hours while watching the riot on television.

The evidence Trump legally knew he lost, despite the nonsense he was spouting and continues to spout, will be overwhelming. It will be important to the story prosecutors present to the jury because it highlights the depravity of Trump’s conduct. This was not someone with a good-faith belief that his cause was just who was misled by advisors into responding in inappropriate ways. He knew full well that he lost and decided to use any means necessary to try to hold on to power.

In the end, prosecutors will likely demonstrate not that Trump believed he lost, but that he simply didn’t care. Regardless of the facts and evidence, he was going to do whatever was necessary to stay in power. And when all the evidence proved that he lost – whether he believed it or not --he resorted to unlawful conspiracies to try to reach his desired outcome.

Trump and his allies may continue to protest that he truly believed he won. That may have some appeal for his political base. But in a court of law, where facts still matter, it’s not going to help him.