Published by The Lawfare Institute
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With the latest Jan. 6 congressional hearings focusing on what then-President Trump’s closest advisers and associates told him—that there was no fraud in the 2020 elections and that Vice President Pence did not have legal authority to refuse to count Electoral College votes—many observers are (once again) speculating about Trump’s potential criminal liability. Make no mistake, no responsible Justice Department prosecutor would restrict her analysis to the law and the facts when deciding whether to bring any criminal case, let alone one against a former president. Considerations of the public interest will regularly counsel against a prosecution, even when the elements of an offense can be proved beyond a reasonable doubt.
But a foundational premise for those calling for criminal charges against Trump is that the law and facts support such charges. And assessing that premise requires an understanding of the relevant law, including the doctrine of “willful blindness.”
The precise proof the government would need to convict the former president of offenses such as obstruction of Congress, seditious conspiracy, and conspiracy to defraud the United States would vary by statute. But at the heart of each charge would be an obligation to prove mens rea—a guilty mind. Criminal defendants usually don’t need to know that they are violating a particular law; “ignorance of the law” is rarely a defense. But, save in a restricted class of cases not relevant here, they do need to know they are doing something wrong, or at least have knowledge of facts that make their conduct wrongful. As the Supreme Court noted in Elonis v. United States: “‘The ‘central thought’ is that a defendant must be ‘blameworthy in mind’ before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like.”
In United States v. Staples, for example, the defendant was charged with illegally possessing a machine gun, and the Supreme Court held that the government had to prove that the defendant actually knew the characteristics of the weapon he possessed. It was not enough to show he simply knew he had a gun because, in the U.S. at least, one can know that and still fairly believe one’s actions are “entirely innocent.” It’s knowing you have a machine gun that puts you on notice and satisfies the mens rea requirement.
This judicial insistence on either knowledge of the facts that make conduct illegal or knowledge of “wrongfulness” (analytically different but regularly conflated by courts and others) goes beyond statutory language. When a statute is silent on the issue of mens rea, courts will regularly infer that requirement, purportedly as a matter of statutory interpretation. For the statutes at issue here, however, there are textual bases for mens rea, like the reference to “corruptly” in the obstruction of Congress statute—a word that, in Arthur Andersen v. United States, the Court read to mean “consciousness of wrongdoing.”
Radically simplifying the analysis of the former president’s criminal liability, a mens rea inquiry might well turn on whether Trump actually knew that his claims of widespread fraud were false. Likewise, determining Trump’s mens rea as to the wrongfulness of his actions might turn on his awareness of the illegality of the proposal for Pence to direct the election’s outcome and his decision to pursue it anyway. This is not to suggest that a heartfelt belief that fraud had occurred would necessarily be a defense to obstruction charges. That Trump was confident fraud had occurred would not, say, justify knowing assistance to a violent attack on the Capitol.
But proof that Trump knew his fraud claims were false would substantially advance a case against him.
Let us start with the actual knowledge issue. So how does one show actual knowledge? It’s not always hard. Sometimes the defendant will admit it: “This investment is worthless but I will say it is valuable.” Or in Trump’s case, “Yeah, we lost, but I will claim victory anyway.” Sometimes the evidence will be circumstantial, and readers should never confuse “circumstantial” with “weak.” Often it will be enough to show that the defendant was told by others, or, even better (for the government), by real experts, that something was true.
This last approach appears to have underlain the congressional presentation at the June 13 hearing. All sorts of authoritative people told Trump that no widespread fraud had occurred, and from that one might conclude that he “knew” he had lost. “Might” is the key word here. In so many business settings, the accountant’s assertion to the executive as to the company’s financial status provides a fair basis for finding that the executive therefore “learned” and “knew” the information.
But what about an executive with a long track record of rejecting expertise? Here, Trump’s record on the coronavirus pandemic and his rejection of expert advice about it becomes a defense. Sure, like the congressional committee, a jury might find what all experts told Trump extremely probative on the issue of knowledge. Yet that’s not a foregone conclusion. A close observer of the hearings might well find that this is a man defined more by Stephen Colbert’s “truthiness” than by objective evidence, and that Trump’s subjective commitment to the fraud theory withstood any expert assistance.
To the extent the government could not prove—or worried that a jury would not find—actual knowledge, it could rely on a well-established legal doctrine well-suited for this situation: “willful blindness” or “conscious avoidance” (the terms are used interchangeably). The idea, as the Supreme Court explained recently, is that defendants cannot escape criminal liability “by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances. ... [D]efendants who behave in this manner are just as culpable as those who have actual knowledge.”
This substitute for actual knowledge should never be confused with a “should have known” standard (an objective inquiry that looks to what a reasonable person should have known under the circumstances). To prove “willful blindness,” the prosecution must show that the defendant subjectively believed that there was a high probability that the relevant fact was true and that the defendant took deliberate actions to avoid learning that fact. A trip through the defendant’ mind still cannot be avoided. But the goalpost has been moved a bit, with active rejection filling up the difference between “subjective belief in a high probability” and actual knowledge. When a defendant receives “trash bags and plastic storage bins full of assorted loose goods at prices well below wholesale on an almost daily basis,” a jury can convict on finding him to have “thought it highly likely” that the goods were stolen, even if the jury decides he lacked actual knowledge.
Moving the goalpost closer to satisfying the government’s mens rea burden still leaves a distance to travel. One would need to find both that Trump was presented with credible expert opinion as to the lack of fraud and that such advice in fact gave him subjective belief in the high probability of that fact. The latter inference is possible but hardly compelled. One’s ability to make that inference is not necessarily prevented by the fact that Trump was advised by others, like his lawyers Rudy Giuliani and Sidney Powell, that fraud had occurred. A reasonable juror might well think the level of expertise and empirical support those advisers offered was minimal and swamped by the “real” experts who thought otherwise. Such a juror might also find ample evidence that Trump willfully pushed aside the “real” experts around him. But the issue would not be whose word should have counted, but what Trump actually believed.
When instructing jurors on “willful blindness,” courts will often make clear that it can’t be found if the defendant “actually believed” that the relevant fact was not true. Delusional pigheadedness is indeed a defense. Did Trump come around to the conclusion that there was a “high probability” no fraud had occurred? Before anyone gets to the extraordinarily hard question of whether a prosecution would be in the public interest, one needs to appreciate the challenge of answering this factual question.
A somewhat similar issue might arise with respect to Trump’s embrace and weaponization of John Eastman’s notion that Pence could legally refuse to count certain certified electoral votes. For Judge David O. Carter in the Central District of California (and I suspect for many other readers), “[t]he illegality of the plan was obvious” and both Trump and Eastman “likely knew” that. The June 16 hearing drove home the extent to which thoughtful legal analysts found Eastman’s analysis both ridiculous and dangerous. They also made clear that Trump was advised repeatedly and over the course of several weeks that the legal theory was wrong, including by the vice president, who unequivocally refused to do as Trump wished. Testimony in the June 16 hearing also suggested Eastman’s own knowledge of the plan’s illegality. He conceded that it would violate federal law and later wrote in an email to Giuliani, “I’ve decided that I should be on the [presidential] pardon list, if that is still in the works.” (Technically, a pardon request might come from someone fearing an unjustified prosecution by a new administration, but this is still pretty damning evidence.)
Yet here again, if Trump’s state of mind as to the illegality of this plan became relevant to a fraud or obstruction prosecution, inferences about what was actually in his mind, not what should have been, would have to be made. They are not foregone conclusions. Strictly speaking, “advice-of-counsel” is not a defense. But a defendant’s actual and good-faith reliance on such advice can substantially undercut the prosecution’s proof of his intent (an element on which the prosecution bears the burden of proof). Mens rea issues regularly require trips through a defendant’s head. Such trips are made every day in trials around the nation to the satisfaction of jurors and judges. And if Eastman clearly told Trump that the plan was illegal—as Greg Jacob, Pence’s chief counsel, testified he did—that might be the end of the analysis, especially if the government’s burden is showing a generalized awareness of wrongfulness (and usually not awareness that a particular statute will be violated). Yet no one should underestimate the difficulty of a trip into the head of someone who has had a troubled relationship with expertise, precedent, and reality.