Jack Smith must get inside Trump’s head to prove his guilt: report

02 August 2023

United States Justice Department special counsel Jack Smith on Tuesday indicted former President Donald Trump for allegedly orchestrating a conspiracy to topple American democracy upon losing the 2020 election to President Joe Biden. Smith's forty-five-page complaint contains four criminal charges against Trump, among them that he attempted to deprive citizens of their constitutional right to vote.

Smith's document is filled with evidence that he believes will convince a jury of Trump's guilt beyond a reasonable doubt. But as The Washington Post's Devlin Barrett and Josh Dawsey explained on Wednesday, Smith's biggest challenge is establishing what was going through Trump's mind when he tried to overturn Biden's victory.

"Central to special counsel Jack Smith's case is the accusation that Trump knew his claims were lies. Evidence of a defendant's intent is often critical to criminal prosecutions, and it may be the most crucial element of Smith's case against Trump," Barrett and Dawsey wrote.

Although Smith declared that "Trump's claims were false, and the Defendant knew they were false," attorney Robert Kelner told the Post that proving as much will be difficult for Smith.

"I think the entire indictment really turns on the question of Trump's intent," Kelner opined. "Arguably, there isn't any smoking-gun evidence in the indictment regarding intent, though there is certainly circumstantial evidence. At the heart of the case is really a metaphysical question of whether it’s even possible for Donald Trump to believe that he lost the election, or lost anything else, for that matter."

Smith "needs to show that all of the false statements Trump made about the election, which the indictment chronicles in great detail, were understood by Trump to be false; otherwise, it becomes a case about political speech and First Amendment rights, and that's not where the government wants to be," Kelner added. "There is a decades-old question about whether, in the privacy of his own office or bedroom, Donald Trump admits to things that he doesn't admit publicly or whether, even when he's staring at himself in the bathroom mirror shaving, he's telling himself the same lies that he tells the rest of us. I don't think we know the answer. It may be an unanswerable question, and that's one of the challenges facing Jack Smith."

Another potential snag, ex-federal prosecutor Jim Walden stressed to Barrett and Dawsey, is that "sometimes people have an incredible capacity to believe their own nonsense." Walden noted, however, that "the fourth charge" of civil rights violations "is Jack Smith's insurance policy" because it is legally straightforward.

Barrett's and Dawsey's full report is available at this link (subscription required).

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