Published by The Lawfare Institute
in Cooperation With
“I would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations were false,” Trump attorney John Lauro told Fox News hours after his client was federally charged in Washington, D.C., with conspiring to overturn that 2020 election. He was arguing that Trump really believed that his claims of election fraud were true—mistaken though he was—and that, therefore, the allegations of the indictment detail acts he committed without the requisite criminal intent.
Lauro’s point has given many people pause, because we all sense that there is something out of the ordinary about Trump’s mindset. Be it eccentricity or personality disorder, be it narcissism or God knows what, even many of his staunchest admirers cheerfully acknowledge that something’s off with Trump. As the cliché goes, we are to take him seriously, not literally.
Many critics have contested Lauro’s claim, however, as a legal matter. They contend that the crimes charged actually can, in fact, be proved even if Trump subjectively believed that an imagined election victory was stolen from him. See, for instance, here, here, here, and here. Though the precise criminal intent, or mens rea, required for each of the four counts varies slightly, the argument goes, in essence, that prosecutors need prove only that Trump understood that his legal remedies—through recounts and litigation—had been exhausted. When he intentionally resorted to illicit conduct to hold onto power anyway, he knew he was acting wrongfully—outside lawful channels—and, therefore, committed crimes.
My aim in this post is different. My point is that, given the accusations of the indictment, these nuanced legal arguments will likely be unnecessary. If the government can prove just a fraction of the factual allegations that the indictment charges, jurors should have no trouble concluding that Trump knew he had lost the election and was acting in bad faith.
While Trump’s refusal to face facts may be unusual for an ex-president, it’s not unusual for a white-collar criminal defendant. Many such defendants are vexingly willful people who seem incapable of seeing themselves in the wrong. Elizabeth Holmes, the founder of Theranos, is a dramatic recent example, while Jeffrey Skilling, CEO of Enron, was another example from an earlier era. I suspect most white-collar criminal defense attorneys have encountered plenty of such clients who never ascended to public prominence. I know I did in my brief stint as an associate at a white-collar firm in the mid-1980s.
Juries have no trouble convicting such people. When confronted with individuals who relentlessly and pervasively make false statements, jurors usually conclude that they are liars. Jurors get lying. They’ve met liars in their lives. They’ve been burned by them. They don’t like them.
In this article I will outline the shock-and-awe panorama of lies and bad faith and malevolence that are sketched out in Special Counsel Jack Smith’s latest indictment. While the crux of its allegations have been widely reported, the challenge for journalists is that no 800-word newspaper article or 30-second television segment, no matter how skillful and conscientious, can do justice to the snowballing, cumulative impact that this cavalcade of mendacity and calumny is likely to have on jurors. Unlike citizens who casually learn about the case through glimpsed headlines or muffled sound bites drifting down from TV screens at bars or gyms, jurors will be immersed in the evidence for weeks on end. There will be no tl;dr for them. Whether spelled with a lowercase c or an uppercase C, the indictment describes fundamentally unchristian conduct and jurors will see it as such. Properly vetted jurors will not abide it. Glib catch-phrase defenses won’t save Trump; they will bury him.
At the indictment’s foundation are what I’ll refer to as eight anchor lies—specific, provably false claims about the election. These are the whoppers about thousands of dead people voting or noncitizens voting or more votes having been cast than registered voters and so on and so forth. The indictment alleges that Trump was repeatedly and authoritatively assured of the falsity of each of these claims by trusted counselors, advisers, and officials in the best position to know, yet he repeated each fabrication on multiple occasions. Then, at the Ellipse on Jan. 6, 2021, he repeated each of these anchor lies one final and fateful time (see, e.g., ¶¶ 19, 33, 41, 46, 52) in front of the angry crowd (¶¶ 10e, 98, 110, 117) that he had summoned there and that he then urged to march on the Capitol to “fight like hell” lest they not “have a country any more” (¶ 104d).
The grand jury didn’t stop there, though. It supplements those eight anchor lies with at least 16 allegations of what I’ll call breathtaking ancillary lies. Some are false allegations of election fraud, some are not, but each holds the capacity to stun jurors with their brazenness. I provide the full laundry list below, but to take just one example, paragraph 28 of the indictment alleges that on Dec. 23, 2020, Trump’s chief of staff—not named in the pleading but obviously Mark Meadows—“personally observed the signature verification process at the Cobb County [Georgia] Civic Center” and reported back to Trump that the state election officials were “‘conducting themselves in an exemplary fashion’ and would find fraud if it existed.” Nevertheless, later that same day Trump tweeted that the “officials administering the signature verification process were trying to hide evidence of election fraud and were ‘[t]errible people!’”
To these eight anchor lies and 16 ancillary lies, the indictment then ladles on six of what I will refer to as great, flapping, red flags of bad faith. You’ve heard most of these before. Some are contested Trump statements, but others are recorded. They are seemingly unanswerable smoking guns ineluctably pointing toward a criminal state of mind. To Georgia Secretary of State Brad Raffensperger in a recorded phone call on Jan. 2, 2021: “I just want to find 11,780 votes” (¶31f and here). To Acting Attorney General Jeffrey Rosen on Dec. 27, 2020: “Just say that the election was corrupt and leave the rest to me and the Republican Congressmen” (¶74). To Vice President Mike Pence on Jan. 1, 2021: “You’re too honest” (¶90c).
Finally, on top of the eight anchor lies, 16 ancillary lies, and the six red flags of bad faith, the indictment alleges nine instances of what I’ll call, for lack of a better term, shocking malevolence. These are alleged acts and statements that, if proved, reflect a willingness on Trump’s part to malign, defame, threaten, and risk physical injury to innocent people who had the misfortune to get in his way. If jurors believe that these statements were made—and, again, many are recorded and uncontestable at this stage—jurors will likely recoil from the defendant who uttered them.
Perhaps the two most repellant examples of malevolence—and each is actually a set of examples—are the repeated false statements that Trump and co-conspirator 1, manifestly Rudolph Giuliani, made about two, low-level election workers at State Farm Arena. Each accused them of large-scale, criminal ballot-stuffing, foreseeably subjecting both to death threats and harassment (¶¶21b, 26, 31a). (In a civil defamation case later brought by the election workers, Ruby Freeman and Wandrea “Shaye” Moss, Giuliani has recently admitted that his statements were “false” and that they “carry meaning that is defamatory per se,” though he purported to limit his admissions to that case only and encrusted them with so many hedges and qualifications that the presiding judge has not yet decided whether to accept Giuliani’s submission.)
As many readers will have already observed, my summary of the indictment’s accusations is exceedingly conservative. Some readers may actually object that I have omitted a raft of alleged misleading statements by Trump, Giuliani, and co-conspirators 2 and 5—widely reported to be attorneys John Eastman and Kenneth Chesebro—relating to their promulgation of dubious legal theories. These are their proffered theories about, for instance, a vice president’s purported power, when acting as president of the Senate at a quadrennial Jan. 6 joint session of Congress convened to count Electoral College votes, unilaterally to reject slates of electors that have been “ascertained” to be legitimate by a state’s governor in accordance with the Electoral College Act.
My view, however, is that legal theories, no matter how far-fetched, fall into a category of opinion that is likely not possible to characterize as true or false. It is, rather, the pedestrian lies about election fraud and ancillary topics—the ones I have previewed above and will catalog below—that will render Eastman’s and Chesebro’s tortured legal gambits irrelevant and make the jury’s job simple.
The prosecution of Enron CEO Skilling, stemming from the 2001 collapse of that once-vaunted energy trading company, provides some useful parallels. Skilling and other top officials were charged with securities and wire-fraud offenses relating to a scheme to inflate the value of the company. Some of the factual scenarios were highly complex, involving the use of aggressive, almost plausible, push-the-envelope, never-tested-so-never-definitively-outlawed, mark-to-market accounting treatments for arcane machinations involving “special purpose entities.” As Skilling’s trial approached, the defense team spent hundreds of hours huddling with impressively credentialed expert witnesses who they said they planned to call as witnesses, including a former SEC accountant and an eminent law professor and former dean of the University of Chicago Law School, Daniel Fischel. At the time, I thought the trial would present close questions.
I was wrong. I was wrong because it turned out the defendants, including Skilling, had engaged in a number of simple, provable, mundane lies that rendered the obscure accounting niceties irrelevant. For instance, Skilling told investors that a unit had “had an outstanding second quarter,” when, in fact, he knew that it had lost hundreds of millions of dollars. He likewise told them that a situation in California had “had little impact on fourth quarter results” when, in fact, he had been told that, as a result of that situation, the company might have to write off hundreds of millions in losses. For jurors, it wasn’t really that complicated. Skilling was convicted.
Like Skilling’s prosecutors, Trump’s will brush up against complexity. But their case doesn’t hinge on it. Alleged co-conspirators Eastman and Chesebro advocated a series of push-the-envelope, almost-plausible, never-tested-so-never-definitively-outlawed legal theories that they claimed would justify at least some of the conduct they and Trump were urging state legislators, “alternate electors,” and Vice President Pence to engage in. In the end, though, these theories won’t matter if jurors conclude that the whole house of cards was based on factual lies about nonexistent election fraud. And that’s what the indictment alleges.
Here are the details.
The Eight Anchor Lies
Six of what I call the anchor lies are highlighted early in the indictment, in paragraph 12, foreshadowing that they will play a key role at trial.
1. More than 10,000 (or, sometimes, more than 5,000) dead voters voted in Georgia (¶¶ 12a, 31b, 33).
2. 205,000 more votes than voters were cast in Pennsylvania (¶¶ 12b, 43-46).
3. There was a suspicious vote dump in Detroit of more than 100,000 ballots in the middle of the night after the election (¶¶ 12c, 34-41).
4. Tens of thousands of people double voted in Nevada (¶ 12d).
5. More than 30,000 noncitizens voted in Arizona (¶¶ 12e, 14, 15a, 19).
6. Manipulated voting machines switched votes from Trump to candidate Joe Biden (¶¶ 8c, 11, 12f, 20).
To these six, I add two others to which the indictment also devotes considerable space:
7. “Suitcases” of phony ballots were wrongfully counted at State Farm Arena in Atlanta (¶¶ 21b, 23, 25, 26, 27, 29, 31a).
8. There were more votes than voters in Wisconsin (¶¶ 47-52).
The indictment also conveys, in an incantatory way, that Trump repeated at least five of these eight lies on Jan. 6 during his Ellipse speech (¶¶ 19, 33, 46, 41, 52). Indeed, a review of the text of his speech reveals that he invoked all eight anchor lies at that time.
The government will argue that Trump knew these claims were false because he had been exposed to both generalized and specific refutations of them. In paragraph 11, for instance, the indictment lists eight categories of authorities who “repeatedly” provided generalized refutations of the notion that any “outcome-determinative” fraud had occurred during the election. These authorities include the vice president (who “personally stood to gain by remaining in office” yet recognized Trump’s election loss); senior leaders of the Justice Department; the director of national intelligence; the Department of Homeland Security’s Cybersecurity Infrastructure and Security Agency (CISA), whose director (Chris Krebs) Trump fired (¶ 11d) after Krebs called the election “the most secure in America’s history”; senior White House attorneys; senior campaign staffers; state legislators and officials, many of whom were Trump’s “political allies”; and dozens of state and federal courts.
But the government will also offer proof that each anchor lie was disproved specifically by numerous authoritative sources. A host of authorities, for instance, informed Trump in detail about why the State Farm Arena ballot-stuffing allegations were false. These included Georgia Secretary of State’s Chief Operating Officer Gabriel Sterling on Dec. 4 and again on Dec. 7, through public statements (¶ 23); Acting U.S. Attorney General Jeffrey Rosen and Acting U.S. Deputy Attorney General Richard Donoghue in person in the Oval Office on Dec. 15 (¶ 27); Rosen and Donoghue, again, in a phone call on Dec. 27 (¶ 29); and Georgia Secretary of State Brad Raffensperger on Jan. 2, 2021, during Trump’s infamous phone call with him (¶ 31a).
In other instances, Trump’s own staffers alerted him of the falsity of his claims, according to the indictment. A “senior campaign advisor,” reportedly Jason Miller, allegedly told Trump as early as Nov. 25 that anchor lie 1—about thousands of dead people voting in Georgia—was false, only to express frustration later about Trump’s persisting use of it. On Dec. 8, Millier allegedly wrote in an internal email that “it’s tough to own any of this when it’s all just conspiracy shit beamed down from the mothership” (¶ 25).
Sixteen Breathtaking Ancillary Lies
The 16 allegations that I categorize as breathtaking ancillary lies are these.
1. On Dec. 23, hours after his chief of staff assured him that Georgia officials conducting signature verification were doing it in an “exemplary fashion,” Trump tweeted that they were “terrible people” who were overlooking fraud (¶ 28).
2. On Dec. 31, Trump signed a false verification for a Georgia lawsuit alleging election fraud after being warned by staffers that the allegations were “inaccurate” (¶ 30).
3. On Jan. 3, Trump persisted in publicly claiming widespread paper-ballot destruction in Georgia the day after Georgia Secretary of State’s counsel Ryan Germany had advised him of the accusation’s falsity (¶¶ 31b, 32).
4. On Jan. 3, Trump persisted in alleging that thousands of out-of-state voters had voted in Georgia the day Georgia Secretary of State Raffensperger advised of the accusation’s falsity (¶¶ 31d, 32).
5. On Dec. 6, Trump falsely assured the chairman of the Republican National Committee (Ronna McDaniel) that slates of alternate electors would not be used unless Trump prevailed in litigation in the relevant states (¶ 56).
6. In mid-December, Trump’s co-conspirators or agents falsely assured Pennsylvania alternate electors that their certificates and votes wouldn’t be used unless Trump prevailed in litigation in that state (¶ 61).
7. In late December, co-conspirator 4, widely reported to be Jeffrey Clark, who then headed the Justice Department’s environmental unit in its civil division, allegedly lied multiple times to superiors to conceal his surreptitious contacts with Trump, which violated written Justice Department policy, as they plotted to co-opt the Justice Department into spreading election lies (¶¶ 71, 72).
8. On Dec. 28, co-conspirator Clark proposed that Rosen and Donoghue sign a draft letter to Georgia state legislators—intended also to be sent to legislators in six other swing states—falsely claiming that the Justice Department had “identified significant concerns that may have impacted the outcome of the election in multiple States” (¶ 75a).
9. On Jan. 3, Clark sent a revised draft letter to a Justice Department colleague, falsely claiming that “as of today there is evidence of significant irregularities that may have impacted the outcome of the election in multiple states” (¶ 79).
10. On Dec. 29, Trump lied to Vice President Pence, claiming that the “Justice Department [was] finding major infractions” (¶ 90b).
11. On Jan. 4, Trump lied to Vice President Pence: “We won every state by hundreds of thousands of votes” and “We won every state” (¶ 93).
12. On Jan. 5, Trump authorized his campaign to issue this false public statement: “The Vice President and I are in total agreement that the Vice President has the power to act” (¶ 99).
13. On Jan. 6, at 1 a.m., Trump falsely tweeted: “Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be)” (¶ 100a).
14. On Jan. 6, at 8:17 a.m., Trump falsely tweeted: “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval” (¶ 100b).
15. On the morning of Jan. 6, co-conspirator Giuliani lied to Vice President Pence: “‘We have letters from five legislatures begging us’ to send elector slates to the legislatures for review” (¶ 103a).
16. On Jan. 6, during his Ellipse speech, Trump falsely asserted that the Pennsylvania legislature wanted “to recertify their votes” (¶ 104b).
Six Red Flags of Bad Faith
These are the six allegations that, on their face, are so far beyond the pale that it’s difficult to imagine a qualified juror regarding them as proof of anything other than a corrupt, evil, or depraved state of mind.
1. On Jan. 2, Trump demanded during a phone call that Georgia Secretary of State Raffensperger “find” him 11,780 votes (¶ 31a).
2. On Dec. 27, Trump instructed Acting Attorney General Rosen and Acting Deputy Attorney General Donoghue: “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.”
3. On Jan. 1, Trump told Vice President Pence: “You’re too honest.”
4. On Jan. 2, during Trump’s phone call with Georgia Secretary of State Raffensperger, Raffensperger provided Trump a link to a video that Raffensperger said would demonstrate the innocuousness of what had happened at State Farm Arena. Trump responded with toddler-like defiance: “I don’t care about a link. ... I have a much, Brad, I have a much better link” (¶ 31a and here).
5. On Dec. 1, co-conspirator Giuliani, when asked for proof of election fraud by speaker of the Arizona House of Representatives Rusty Bowers, responded: “We don’t have the evidence, but we have lots of theories” (¶ 16).
6. The day after Trump’s telephone call to Raffensperger of Jan. 2, 2021, during which, according to publicly available transcripts, Raffensperger and his colleagues appear to have patiently provided highly detailed refutations of a laundry list of false allegations of election fraud leveled by Trump, Trump tweeted that Raffensperger “was unwilling, or unable, to answer questions such as the ‘ballots under table’ scam, ballot destruction, out of state ‘voters’, dead voters, and more. He has no clue!” (¶ 32).
Nine Indicia of Malevolence
Finally, if jurors are still not sure about Trump’s criminal intent after hearing the eight anchor lies, or the 16 breathtaking ancillary lies, or the six great, flapping, red flags of bad faith, the indictment alleges at least nine chilling instances in which Trump or his co-conspirators were willing to malign, defame, threaten, and risk causing physical injury to innocent people who, by simply doing their jobs, were blocking Trump’s path to an unearned second term.
1. On Dec. 3, during a presentation to a subcommittee of the Georgia State Senate, co-conspirator Giuliani used a misleading video to falsely insinuate that the two previously mentioned low-level election workers at State Farm Arena had counted “suitcases” full of illegal ballots (¶ 21b). Trump amplified the calumny in a tweet the same day (¶ 22).
2. On Dec. 10, Giuliani maligned by name those same two State Farm Arena election workers, this time at a hearing of a committee of the Georgia House of Representatives, asserting that they could be seen on video “surreptitiously passing around USB ports as if they are vials of heroin or cocaine,” and calling them criminals whose homes should be searched. He foreseeably caused the workers to be besieged with death threats (¶ 26).
3. On Jan. 2, Trump maligned the same two election workers “almost 20 times” during his phone call with Secretary of State Raffensperger.
4. Anchor lie 6—the allegation that rigged voting machines had been used to change votes (¶ 11f), which Trump had privately assessed as a “crazy” accusation (¶¶ 8c, 20)—by its very nature maligns the company in question and invites harassment of, and threats to, its executives. Though the indictment doesn’t say whether the government will spell out those consequences at trial, the potential for such consequences will be self-evident to jurors. (In April, Dominion Voting Systems secured a $787.5 million settlement from Fox News in its defamation suit for having amplified false statements leveled by Trump, Giuliani, and Sidney Powell, widely reported to be co-conspirator 3 in the indictment.)
5. In his phone call with Raffensperger on Jan. 2, Trump insinuated that Raffensperger would face criminal charges if he didn’t “find” sufficient votes for Trump to win:
And you are going to find that they are—which is totally illegal—it’s, it’s, it’s more illegal for you than it is for them because you know what they did and you’re not reporting it. That’s a criminal, you know, that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you and to [the Georgia Secretary of State’s counsel], your lawyer” [¶ 31f].
6. The day after his call with Raffensperger, as noted above, when Trump falsely tweeted that the official “had no clue” and had been “unwilling or unable” to answer his questions about fraud (¶ 32), Trump foreseeably subjected Raffensperger and his family to death threats and harassment. (Again, it’s unclear from the indictment whether the government will try to prove those consequences.)
7. On Jan. 5, when Vice President Pence was still refusing to obstruct the certification, Trump warned Pence that Trump was going to have to publicly criticize him. Pence’s chief of staff (Marc Short) immediately understood—as did Trump, jurors may infer—that this step would endanger Pence’s life. Short immediately “alerted the head of [Pence’s] Secret Service detail” (¶ 97), and the next day, rioters would, indeed, chant, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!” (¶ 113).
8. On Jan. 3, when co-conspirator 4, Clark, was speaking with the deputy White House counsel—Pat Philbin—Philbin commented that if Trump refused to leave the White House on Jan. 20 there would be “riots in every major city in the United States.” Clark allegedly responded, “Well, [Pat], that’s why there’s an Insurrection Act” (¶ 81).
9. Similarly, on Jan. 4, when a senior Trump adviser warned co-conspirator 2, Eastman, that he was “going to cause riots in the streets” with his theory that Vice President Pence could unilaterally refuse to count properly credentialed electors from seven swing states, Eastman allegedly parried “that there had previously been points in the nation’s history where violence was necessary to protect the republic.”
Since indictments are never comprehensive summaries of the prosecution’s proof, the above mountain of evidence bearing on Trump’s state of mind is likely just the tip of the iceberg.
In the face of such proof, whoever argues that Trump will be able to persuade jurors that he innocently believed that his victory had been stolen from him and that he was, therefore, free to follow implausible legal advice being furnished to him by his co-conspirator lawyers, seems to me to be whistling in the graveyard.