COMMENTARY

To indict Donald Trump, prosecutors will need to prove intent. Well, here it comes

The hardest part will be establishing Trump's criminal intent. That's what the Jan. 6 hearings should provide

Published June 9, 2022 4:10PM (EDT)

Donald Trump behind bars (Photo illustration by Salon/Getty Images)
Donald Trump behind bars (Photo illustration by Salon/Getty Images)

Perhaps the biggest hurdle for prosecutors eventually to clear in order to bring criminal charges against Donald Trump for his efforts to overturn the 2020 election will be proving his intent. As we explain in a new report, the Jan. 6 committee hearings that begin this week, together with what we know already, should provide more than enough proof to establish the former president's corrupt mental state as he attempted to overturn the election.

In criminal law, "intent" refers to someone's state of mind at the time of their criminal action. When proving intent, you need to show that they intended to do the thing that is a crime. Because it is rare to have direct evidence of what a person is actually thinking, prosecutors usually infer intent from the facts and circumstances surrounding a person's actions.  

In the case of Donald Trump, what we already know about his actions and statements following the 2020 election demonstrate his intent. His actions explicitly showed he was willing to go to any lengths to retain power and was using false claims of fraud as a pretext. 

RELATED: Time for Merrick Garland to act: Trump can't get a pass on serious crimes over "politics"

He attempted to coerce Georgia state officials to "find 11,780 votes," just enough for him to win–a request that would not have made sense if he wanted a legal response to actual evidence of fraud. 

He threatened to replace Justice Department leaders who did not cooperate with his scheme to weaponize the agency to bolster unsubstantiated claims of election fraud and pressure state legislators to appoint "alternative" electors.

He pressured Vice President Mike Pence to reject or delay the Jan. 6, 2021, counting of Electoral College votes. And then, when Pence refused to do his bidding, not only did Trump praise and endorse violence, but he sat by instead of mounting a prompt and appropriate response to an attack on the Capitol. 

Starting on Thursday night, we expect the House select committee to give us a behind-the-scenes look at how all this evidence fits together, providing a detailed account of what transpired during Trump's 187-minute silence between the beginning of the Capitol invasion and when he finally tweeted a video begrudgingly telling his supporters to go home.

As Trump apologists prepare to defend his conduct, it is important to realize how shallow their defense will be. It is laughable to suggest that Trump genuinely believed he had won the 2020 election. We already know that experts and advisers told him the election results were legitimate. He heard this from his campaign advisers, DOJ lawyers, high-level officials in his own Department of Homeland Security and Republican elected officials. Trump knew he had lost a free and fair election, but he wanted to remain in power anyway. 

Here too, the committee's work will be helpful, providing key evidence about what Trump and his allies knew, or should have known, about the results of the 2020 election and shedding light on discrepancies between what Trump and others were saying and doing in public and what they were admitting in private.


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The committee, prosecutors and all of us have a foundation for showing Trump's corrupt intent: his long-established pattern of crying "fraud" to undermine results he didn't like. 

After Trump lost the 2016 Iowa caucuses to Ted Cruz, he cried fraud and demanded a do-over. He did the same thing in the general election after losing the popular vote to Hillary Clinton, despite winning the Electoral College and becoming president. 

We already have a clear foundation for demonstrating Trump's corrupt intent: his long-established pattern of crying "fraud" to undermine results he didn't like.

Trump laid the groundwork for claims of fraud in 2020 before votes were cast and before there could be any evidence of irregularities. At a rally in August 2020, Trump said that "[t]he only way we're going to lose this election is if the election is rigged." Throughout 2020, he made a series of statements along these lines building the foundation for his post-election narrative and showing us that even before the first vote was cast, he had no intention of accepting election results he didn't like.

Through its investigation and public hearings, the committee will shed light on what is already apparent: Trump's claims of fraud were not in response to reports or evidence. They were not in response to a genuine concern about our democracy. Before the first ballot was even cast, Trump's team was prepared to mount a baseless offensive that supported the conclusion they wanted to reach.

Even if Trump could somehow convince prosecutors and a jury that he really believed he had won — despite all the evidence to the contrary —  that would not have permitted him to use dishonest means to stay in power. His legal adviser, John Eastman, made clear that the scheme he and Trump tried to execute to keep Trump in power required breaking the law. You can't keep power illegally even if you believe you really won an election. But prosecutors won't need to reach this point, since the evidence is so strong that Trump and those around him knew he lost.

We already know that lawyers in the White House counsel's office warned Trump's team about the lawlessness of their scheme. The committee will likely reveal more information about Trump's knowledge of its lawlessness and his intention nonetheless to use whatever means necessary to remain in office.

Prosecutors don't need Donald Trump to dramatically confess on the stand in order to convict him. All they need is to show that he intended to undermine the counting of electoral votes. That is already evident and will be further substantiated by the mountain of evidence that the Jan. 6 committee has amassed and will present to the American public.

As a federal judge in California has already found, there is significant evidence that Trump and his close advisers committed criminal offenses in the course of their plot to overturn the people's vote in the 2020 election. His intent will become even clearer through the evidence presented in this month's hearings. We hope that will embolden prosecutors to overcome their caution and move forward with criminal charges.

Read more on the effort to hold our 45th president accountable:


By Noah Bookbinder

Noah Bookbinder is the president of Citizens for Responsibility and Ethics in Washington (CREW) and a former federal corruption prosecutor. He previously served as chief counsel for criminal justice for the Senate Judiciary Committee. Follow him on Twitter: @NoahBookbinder

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By Norman Eisen

Norman Eisen is a senior fellow at the Brookings Institution and was the chief White House ethics lawyer from 2009 to 2011 and ambassador to the Czech Republic from 2011 to 2014.

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