Legal expert explains why Trump’s 'remarkable capacity for self-delusion' isn’t a defense in DOJ’s case

08 August 2023

When special counsel Jack Smith revealed a second federal indictment of former President Donald Trump, “people incorrectly [believed] that part of the prosecution’s job will be showing that Trump understood” he actually lost the 2020 election, constitutional law professor Jessica Levinson writes.

Those people, the legal expert argues, “are mistaken.”

In an article published Monday on MSNBC, Levinson explained why Smith “ can convict Trump on all charges" in the indictment "without ever showing that Trump knew” he lost the election.

READ MORE: 'Read it in full': Jack Smith announces charges against Donald Trump

A grand jury on Aug. 1 indicted Trump on four counts related to his efforts to overturn the 2020 election won by President Joe Biden, including conspiracy to defraud the United States.

Delivering a brief two-minute statement on the indictment, Smith called the Jan. 6, 2021 insurrection “an unprecedented assault on the seat of American democracy.”

“As described in the indictment, it was fueled by lies,” Smith told reporters. “Lies by the defendant, targeted at obstructing a bedrock function of the U.S. government."

READ MORE: Jack Smith is prosecuting the 'most dangerous threat' America's 'transfer of power' faced: ex-prosecutor

Trump last week pleaded not guilty on all charges.

Levinson on Monday explained why proving “that Trump was well aware that Biden had defeated him” will help “fill in the narrative contours of the facts alleged in the indictment,” but is “not necessary for [Smith’s] success.”

Per Levinson:

Smith alleges in the indictment that Trump illegally: (1) pressured state election officials to declare that Trump won the states they represent (even though he did not); (2) attempted to send “fake electors” to vote in the Electoral College (even though they had no power to vote); (3) tried to get members of the Justice Department to endorse the idea that there was election fraud (even though there was not); (4) sought to get then-Vice President Mike Pence to refuse to certify the Electoral College votes (even though he had no constitutional authority to do so); and (5) supported an angry mob who attempted to prevent the certification of the Electoral College.

“If Smith can prove that Trump did in fact undertake each of those actions, it doesn’t matter whether Trump believed the election was stolen from him, or that he was the one stealing the election,” Levinson writes.

Levinson concedes Smith “must prove that Trump acted with criminal intent,” but argues whether or not Trump knew he lost the election is “legally immaterial.”

“For instance, with respect to Trump’s pressure campaign on Pence, prosecutors need to show that Trump knew Pence had no authority to ignore his constitutional duties and refuse to certify the Electoral College vote,” Levinson writes.

READ MORE: Ex-Michigan GOP co-chair pleads not guilty to accusations she posed as fake elector for Trump

Noting Trump’s “ remarkable capacity for self-delusion,” Levinson surmises that prosecutors will prove “that Trump was repeatedly told, and indeed understood, that he had lost the 2020 presidential election.”

“But this is not what the law requires,” Levinson writes, adding “why Trump allegedly committed these crimes is beside the point.”

All Smith needs to do, according to Levinson, is “prove to a jury what Trump did — and the evidence is piled sky high.”

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