Part of the prosecution's motion, Litman said, has "so far escaped notice." Specifically, Litman points out that pages 16 to 19 argue that "the court should exclude inadmissible testimony regarding the defendant's alleged state of mind."
"This argument is in contrast to the balance of the motion, which is trying to keep Trump from introducing irrelevant testimony, such as the claim that the prosecution is just a political attacked by the deep state," he said. "Even if that were true, and of course it isn't, it would've nothing to do with the jury's sole job of deciding the truth of the government allegations."
Trump's state of mind, according to the expert, "is different."
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"It's hugely relevant to the charges," he said. "And he's trotted out several different versions of why he didn't have the requisite intent."
Litman then walks us through potential scenarios.
"The best and classic way to introduce state of mind evidence is through the defendant's own testimony explaining his state of mind. But now we run right into the brick wall of axiom #1: Trump can't testify. It would be a bloodbath, walking him through the greatest hits of his 1000s of lies, and exposing him to a perjury-fest," he wrote. "An important subtext of Smith's motion is that both parties pretty well understand that."
To get around the problem, Trump has very few options, according to Litman.
"A witness statement such as 'Trump told me he didn't think anything bad would happen' are inadmissible hearsay when offered by Trump," he said, adding that Trump "might try to pull other fast ones, asking witnesses their impression of what his state of mind was."
"That's where Smith's motion comes in," Litman writes. "He methodically seals up different avenues that Trump could try. A non-expert witness can only testify based on personal knowledge, and they wouldn't have personal knowledge of his state of mind. And an expert witness testimony about [Trump's] state of mind would not be 'helpful' to the jury, which could observe and rock conclusions as well as an expert."
In conclusion, Litman says, Smith "wants Trump's witnesses to be limited to what they personally observed and not inject any impressions about Trump's state of mind."
"If Chutkan rules for Smith, it's hard to see how Trump can sneak in evidence of his state of mind (except for testifying, but see axiom 1)," according to the ex-prosecutor. "But, like the lead argument in the motion to keep Trump from making irrelevant political charges, this will be an area where, if Chutkan grant the motion, Trump will try all kinds of sneaky maneuvers at trial to get around it."
