The question of criminal intent underlying Donald Trump's efforts to overturn the 2020 election was analyzed in a new column by former Deputy Attorney General Harry Litman.
"Many experts doubt the ultimate ability of the criminal justice system to convict Donald Trump because it’s possible he really believed he’d won the election," Litman wrote in the Los Angeles Times. "If he is so much of a sociopath that he believes his own Big Lie (or, to state it with the sort of constitutional precision utterly foreign to him, there is a reasonable doubt whether he has that belief), could he wriggle out of culpability? He can’t — or he shouldn’t. Intent in a criminal case depends on the defendant’s state of mind about a specific criminal act, not an overall state of affairs. That’s 'hornbook law' — so basic it doesn’t require citation for law students."
Litman, a professor at UCLA School of Law, examined Trump's "infamous shakedown telephone call" with Georgia Secretary of State Brad Raffensperger which is being investigated by Fulton County District Attorney Fani Willis.
"If a jury believes he believes it, will they let his strong-arming slide? Trump’s claim that he won Georgia is wholly implausible — it runs against not just the weight of the evidence but the entirety of the evidence. But a jury need not decide he was lying to convict him of election fraud in Georgia," he explained. "If Willis’ case comes to trial, the jury would be instructed that the intent requirement is fulfilled if Trump wanted Raffensperger to tamper with the vote count, which is a felony. Even if the then-president was certain he was justified, he is no less guilty."
Litman explained the same defense would also fail for the 59 Trump supporters who signed fraudulent electoral college certificates.
"What about state of mind here? Did those who signed the documents lack criminal intent because they “really believe” they were legitimate electors? It doesn’t matter. Even if each of the elector charlatans was possessed of the firmest of convictions that Trump had won their state, their attestation that they were 'duly' qualified is still false," he explained. "Their culpability for creating a false document with the intent of committing fraud would be unchanged by their subscription to the Big Lie."
On Tuesday, Deputy Attorney General Lisa Monaco suggested DOJ has "ongoing investigations" into the fake elector scheme.
"For those who think Trump always knew that the Big Lie was just that, the prospect of his eluding justice by claiming he really believed it would be the last refuge of a scoundrel. But never fear. It turns out that it’s no refuge at all," Litman wrote.
Read the full report.