Former federal prosecutor explains why ‘detached from reality’ may be Donald Trump’s best legal defense

This Thursday, June 16 will mark the third day in a series of public hearings from House Speaker Nancy Pelosi’s select committee on the January 6, 2021 insurrection. The committee, through its witnesses and testimony, has been demonstrating that former President Donald Trump lied about the results of the 2020 presidential election — falsely claiming that it was stolen from him — and that his Big Lie led to a mob of his supporters, some of whom have faced criminal charges, violently attacking the U.S. Capitol Building that day.

Renato Mariotti, a former federal prosecutor, offers some legal analysis of the hearings in an article published by Politico on June 15. And Mariotti argues that being “detached from reality” may be Trump’s best legal defense when it comes to the evidence presented during the hearings.

“Detached from reality,” in fact, are the exact words used by former U.S. Attorney General Bill Barr during his testimony for the committee. After losing the election, Barr testified, Trump claimed that the election had been stolen from him. But as much of a Trump loyalist as Barr was before the election, he refused to go along with the Big Lie — which was one line he refused to cross.

Barr, in 2020, described Trump’s claims of widespread voter fraud as “bullshit,” and during his testimony for the select committee, he described Trump’s claims as “detached from reality.”

Mariotti writes that “ironically,” Barr’s “seemingly damning assessment of Trump’s state of mind” after the election “might be his best defense against a possible criminal prosecution.”

“As Barr made clear in his videotaped deposition,” Mariotti explains, “Trump seemed uninterested in facts presented by him and other lawyers that disputed what he called ‘total nonsense’ about widespread election fraud. Instead, as several former Trump insiders testified, the former president clung to implausible conspiracy theories advanced by a handful of legal advisers such as Rudy Giuliani, John Eastman and Sidney Powell. The committee’s clearly stated goal is to show Trump deliberately ignored the truth in favor of a self-interested lie that caused the deadly January 6 insurrection. And if it was deliberate, many observers say, Trump deserves to be held criminally liable.”

Trump’s “state of mind” after the 2020 election, according to Mariotti, is key. If he knew the Big Lie was a flat-out lie and promoted it anyway, that’s one thing. If he was genuinely delusional enough to believe his own nonsense — or as Barr described it, “bullshit” — that’s another.

“One potential charge that is getting a lot of attention on social media is conspiracy to defraud the United States, which would require the Department of Justice to prove beyond a reasonable doubt that Trump agreed with others to obstruct a lawful function of the government by deceitful or dishonest mean,” Mariotti notes. “I’ve charged that statute before when I was a federal prosecutor in the context of a dishonest tax avoidance scheme. At the core of any fraud prosecution is proving the defendant’s dishonesty and intent to defraud beyond a reasonable doubt. That’s why Trump’s state of mind — in particular, proof regarding whether he believed what he was peddling — is so important, and why his rather complicated state of mind presents serious problems for prosecutors.”

On January 7, 2021 — the day after the attack on the U.S. Capitol Building — CNN journalists Kevin Liptak, Veronica Stracqualursi and Allie Malloy reported that a prerecorded video from Trump acknowledged that Joe Biden would be sworn in as president on January 20.

In that video, Trump said, “A new administration will be inaugurated on January 20. My focus now turns to ensuring a smooth, orderly and seamless transition of power.”

A White House adviser, interviewed on condition of anonymity after the Capitol riot, told CNN, “I think that video was done only because almost all his senior staff was about to resign, and impeachment is imminent…. That message and tone should have been relayed Election Night.... not after people died.”

On April 5 of this year, The Guardian’s Martin Pengelly reported on what Trump had to say about the 2020 election during an interview with a panel of historians. Trump, during that interview, talked about South Korean President Moon Jae-in, and said that “when I didn’t win the election, he had to be the happiest — I would rate, probably, South Korea third- or fourth-happiest.”

During that interview, Trump also said that “the election was rigged and lost.”

Pelosi’s January 6 select committee, of course, doesn’t have the power to prosecute anyone. But prosecutors for the U.S. Department of Justice can certainly pay attention to the evidence the committee presents. And U.S. Attorney General Merrick Garland has said that he is watching the hearings — all of them.

CNN quotes Garland as saying, “I am watching, and I will be watching all the hearings, although I may not be able to watch all of it live. But I will be sure that I am watching all of it. And I can assure you that the January 6 prosecutors are watching all of the hearings as well.”

Mariotti, in his June 15 op-ed for Politico, stresses that if Trump were indicted, prosecutors “would have to overcome the likely defense that Trump sincerely believed the election had been stolen because he had been told so by people he believed were knowledgeable.”

“Defendants usually don’t go to prison for following legal advice,” Mariotti observes. “While (John) Eastman, (Rudy) Giuliani and (Sidney) Powell were conspiracy theorists whose claims were thrown out of multiple courts, they also were lawyers with, at one time, good credentials. Trump’s defense team would argue that he trusted them and relied on their advice. Poor judgment might disqualify someone for public office, but it is not, in and of itself, a crime.”