After his loss in the 2020 election—and subsequent impeachment by Congress for allegedly inciting a mob to overturn the results—Republican strategists and advisers grew squeamish over former President Donald Trump‘s insistence that the election was stolen from him, and that his insistence of victory would alienate voters and lead to the defeat of conservatives down the ballot.
Several years later, Trump’s unwillingness to yield an inch is now serving as the cornerstone of his defense in a landmark case accusing him of seeking to defraud the United States.
On Thursday, the former president traveled to Washington, D.C., to be formally arraigned for his actions in the lead-up to the Jan. 6 riots at the U.S. Capitol, facing a bevy of charges from fraud and conspiracy to obstruction of justice.
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Many observers noted that the case, developed by attorneys working under Special Counsel Jack Smith, focuses not on tangible violations of the law, but situational proof of whether Trump was aware there was no evidence to support his belief the election was stolen, and acted to change the result anyway.
And Trump, unwilling to admit defeat from the very beginning, has never so much as acknowledged his belief might have been incorrect—even after numerous defeats in courtrooms around the country seeking to challenge the outcome.
That, legal experts tell Newsweek, could make things complicated for federal prosecutors. While Trump’s actions may have been objectionable, the belief goes, they can’t prosecute him for negligent or criminal action without proof he said what he said with malicious intent.
“Trump could have convinced himself that the election is stolen,” Jonathan Turley, a conservative legal commentator and a professor at George Washington University, told Newsweek. “Millions share that view. They have also not changed their view after hearing the opposing views for years in the media and Congress.”
“If Trump believed that election was stolen, this entire indictment collapses on its own weight,” he added.
Others, however, aren’t so sure. Even before the election, Trump regularly suggested Democrats would try and alter the result, and provided fuel for the speculative coverage in the right-wing press that followed after his defeat.
While he declined to comment on whether Trump committed criminal acts, Trump’s former Vice President, Mike Pence, has claimed Trump knowingly and willfully urged him to violate his oath by asking him to reject the results of the presidential election on Jan. 6, adding Trump was acting on the advice of a group of “crackpot lawyers” over the advice of his cabinet.
And on Thursday, Trump’s own attorney general—William Barr—went on CNN to allege Trump knew all along that he’d lost the election, and that his actions thereafter were not protected by the First Amendment.
“As the indictment says, they are not attacking his First Amendment right,” Barr told CNN’s Kaitlan Collins Thursday night. “He can say whatever he wants, he can even lie. He can even tell people that the election was stolen when he knew better. But that does not protect you from entering into a conspiracy.”
“At first I wasn’t sure,” he added. “But I have come to believe he knew well he had lost the election.”
That point of view was even held by Trump’s own attorneys, who admitted outside of the courthouse Thursday that Trump was given advice by associates not to dispute the result the president then, ultimately, chose to ignore.
“I think that everybody was made aware that he lost the election, but that doesn’t mean that that was the only advice he was given,” Alina Habba, a spokesperson for Trump’s legal team, told reporters outside of federal court Thursday. “[…] There are a numerous amount of advisers and politicians and lawyers, not just one or two, that are giving you advice and telling you what they believe is true.”
“The president has the right, as every one of us do, to listen to several opinions and make their decision,” she added.
That in itself, experts claim, could be enough to swing a jury in the government’s favor: even if there’s no demonstrable way to prove exactly what inspired an individual to think a certain way, a prosecutor can always find statements and evidence to argue an individual’s intent.
And with several unnamed, so-called “co-conspirators” named in Smith’s indictment, experts believe there is likely plenty of evidence to make that case.
“A criminal case when the acts are not really in dispute will always be about intent,” Michael McAuliffe, a former prosecutor who teaches law at William and Mary University, told Newsweek. “But intent can be a common-sense conclusion. The testimony by the lawyers will be key. And just look at Bill Barr’s recent comments about Trump’s intent.”