If former President Donald Trump is charged in connection with the January 6 attack and plotting to overturn the 2020 presidential election, one of the key issues at trial will be if the former president really believed the election was rigged against him — something special counsel Jack Smith has investigated with his latest interviews with Jared Kushner and Hope Hicks.
The problem for Trump, former prosecutor Harry Litman told CNN's Sara Sidner on Friday, is that Trump would be an enormous liability to himself if he tried to take the stand to dispute it.
"Can I ask you ... there are questions being asked about whether or not Trump actually believed that he had lost this because it was stolen," said Sidner. "Does that matter in this prosecution what he believed, if people were telling him that he lost?"
"It's a great point," said Litman. "The short answer is yes, at least for a jury."
On one hand, he noted — echoing other legal experts — it doesn't matter legally what he believed, it's his actions that count.
"That doesn't mean you can incite an insurrection or tell Mike Pence to violate the Constitution," he said.
"But for a jury to hear — and they will hear, they won't hear it from Kushner, they'll hear from Alyssa Griffin, they'll hear from Mark Milley – he understood he lost. That's going to matter to them. It's going to make the whole scheme that went forward seem all the more intentional, nefarious, and not accidental."
"But is there any legal thing that the defense can stand on to say, well, he just thought that that was it, that's why he kept going?" asked Sidner.
"They can try to proffer it," said Litman. However, he added, "Here's Axiom Number One in any case involving Trump: he won't testify. He can't testify. He'd be murdered on cross-examination. So it's a little bit of an inside prosecutorial point. But I don't see how they're going to present this point."
Harry Litman says Trump will get "murdered" on cross-examinationyoutu.be
