By: Eric Wang
Despite growing evidence against him, former President Donald Trump cannot be cited for conspiracy and defrauding unless federal prosecutors prove criminal intent or prove that Mr. Trump knew he was acting on false information. To prosecute someone, the prosecutors must first prove the defendant intended to break the law. However, surmounting this proves a notable challenge.
In March, a federal judge concluded that Mr. Trump and John Eastman, a lawyer who had assisted Mr. Trump, had likely committed felonies in an attempt to overturn the 2020 presidential election. Judge David Carter of the Federal District Court of the Central District of California says, “The illegality of the plan was obvious.” Judge Carter cited two felonies the two men had likely committed: conspiracy to defraud the United States of America and obstructing a congressional proceeding.
Daniel Zelenko, a former federal prosecutor and defense lawyer, states that in all potential crimes Mr. Trump may have committed, the Justice Department would have to prove he had the intent to commit those crimes. This brings some difficulty to the table. As the New York Times says, “Mr. Trump has a long history of saying whatever suits his purposes without regard for the truth.” Plus, there have been testimonies that undermine Mr. Trump’s claim that he thought he won the election. Alyssa Griffin, the communications director of the White House in the days after the 2020 election, testified that Mr. Trump said to her, in November of 2020, words along the lines of: “Can you believe that I lost to Mr. Biden?”
Making the matter even more complicated is the fact that Trump may have changed his mind. Ms. Griffin said on CNN, “He [Mr. Trump] told me shortly after that he knew he lost, but then, you know, folks got around him. They got information out of him, and I think his mind genuinely may have been changed about that, and that’s scary, because he did lose, and the facts are out there.”
As Samuel Buell, a law professor at Duke and a former federal prosecutor says, “You need to show that he [Mr. Trump] knew what he was doing was wrongful and had no legal basis. I’m not saying that he has to think: What I’m doing is a crime. It’s proving: I know I don’t have a legal argument, I know I’ve lost the election, but I’m going ahead with a known-to-be-false claim and a scheme that has no legal basis.”
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