Proving Trump's Knowledge of Election Loss: The Pivotal Issue in the DOJ'S Conspiracy Case Related to the January 6th Indictment
On August 1, 2023, former President Donald Trump was indicted by a Washington, D.C. grand jury over charges that he conspired to defraud the government, conspiracy against the right to vote, conspiracy to obstruct an official proceeding, and obstruction of an official proceeding. The indictment claims that these actions targeted the foundational process of the U.S. federal government's election results certification in violation of 18 U.S.C. § 1512 and 18 U.S.C. § 241.
18 U.S.C. § 1512 refers to tampering with a witness, victim, or an informant. Violations of this section can include killing or attempting to kill a person with intent to prevent their testimony, using intimidation or physical force, or misleading conduct with the intent to influence, delay or prevent their testimony, or harm a person in retaliation for their testimony.
18 U.S.C. § 241 refers to conspiracy against rights. This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person in any state, territory, commonwealth, possession, or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or laws of the United States.
Part of the charges center on Trump's attempts to allegedly submit fraudulent elector slates in key swing states that were decided in favor of Joe Biden. The indictment charges that:
“Shortly after election day—which fell on November 3, 2020—the Defendant launched his criminal scheme. On November 13, the Defendant’s Campaign attorneys conceded in court that he had lost the vote count in the state of Arizona—meaning, based on the assessment the Defendant's Campaign advisors had given him just a week earlir, the Defendant had lost the election. So the next day, the Defendant turned to Co-Conspirator 1, whom he announced would spearhead his efforts going forward to challenge the election results. From that point on, the Defendant and his co-conspirators executed a strategy to use knowing deceit in the targeted states to impair, obstruct, and defeat the federal government function, including as described below.” Indictment Page 9, ¶13.
“In late December 2020, the Defendant [Trump] attempted to use the Justice Department to make knowingly false claims of election fraud to officials in the targeted states through a formal letter under the Acting Attorney General’s signature, thus giving the Defendant's lies the backing of the federal government and attempting to improperly influence the targeted states to replace legitimate Biden electors with the Defendant's.” Indictment at Page 27, ¶70.
The indictment provides a detailed timeline of alleged attempts by Trump and other co-conspirators from the day after the election up through the January 6th incident to target seven states—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin—in an attempt to “cause those individuals to make and send to the Vice President and Congress false certifications that they were legitimate electors.” Indictment at Page 21, ¶53.
It will be the government’s burden to prove that Trump was a knowing and voluntary participant in a conspiracy to commit the above offenses. The government must prove beyond a reasonable doubt the existence of an agreement between two or more persons and that Trump had knowledge of the agreement and that he voluntarily participated in that agreement with the intent to commit an offense against the United States or to defraud the United States. Finally, the government must prove that at least one of the conspirators committed an overt act to further the objectives of that conspiracy.
The key issue will be whether the government can prove that at the time he engaged in the conduct alleged in the indictment, that Trump knew he lost the election and nevertheless conspired to interfere with the certification of the election results on January 6th.
Proving knowledge can be challenging for prosecutors in fraud cases—especially when it is impossible to know what a defendant was thinking at the moment he allegedly engaged in the alleged criminal conduct. The government will likely argue in Trump’s case that he knew he lost the election, but aced with deliberate ignorance as to that reality in order to carry out the objective of the conspiracy.
Deliberate ignorance is an jury instruction that prosecutors can request in situations like this in order to prove a defendant's knowledge of a crime. Prosecutors will likely argue that no one can evade responsibility for a crime by purposefully ignoring the obvious. In this context, if the jury was convinced that Trump ignored a high likelihood that he in fact lost the election, then the government may be able to prove beyond a reasonable doubt that he was knowing participant in the above criminal scheme. This special jury instruction generally includes the requirement that a defendant acts "deliberately" to avoid full knowledge, and it has been held repeatedly as an accurate statement of the law. See United States v. Allen, No. 15-5525, at *16 (6th Cir. Nov. 2, 2017).