Below is my column on the Hill about the ongoing federal grand jury investigation that is reportedly looking into the January 6th and possible criminal charges against former President Donald Trump. If there is an indictment, it cannot be based on Vizzini’s accusation that simply “UnimaginableFor anyone to believe that there was widespread fraud in the elections. especially, A new Harvard study It found that most of the people who marched on the Capitol on January 6 did so out of loyalty to Trump rather than rioting. Millions of people still believe that the election was stolen. However, any case would likely be tried in Washington, D.C., which would make for arguably the worst possible jury politically for a former president.
Here is the column:
This week, CNN received 282 page letter Former President Trump’s “notice of intent” to sue includes dozens of past transcripts and online stories of the network’s relentless anti-Trump coverage. However, there is one line that stands out. Trump “subjectively believes that the results of the 2020 presidential election have been affected by fraudulent voting activity in several key states,” the statement said.
This line does not create a case for civil defamation – but if the Attorney General can provide a criminal defense Merrick Garland indicts Trump as part of a grand jury investigation.
As a defamation lawsuit, the length of the exhibit does little to support the limited case law supporting Trump’s claim. Trump faces a tough constitutional standard that applies to government officials and public figures. Under that “actual malice standard,” he must show that CNN had actual knowledge of the falsehood of a statement, or showed reckless disregard for its truth or falsity.
Trump has long objected to this standard He asked to change it Provide more responsibility for the media. Ironically, liberals like the Professor at Harvard University Cass Sunstein They have also called for a wider use of defamation To fight “fake news” But the courts have not accepted such invitations. This standard is designed to make libel actions more difficult, and to give the free press “breathing space” to fulfill its key function in our system.
CNN’s reporting on some stories that Trump lied about election fraud was clearly a guarded opinion. In other reports, it was based on the opinions of experts or sources. In either case, a defamation case cannot be maintained based on an “I believed it to be true” claim. The question is whether CNN knew it was false or whether it was false or true.
However, this claim can be more successful in a criminal prosecution.
Some of us continue to question the basis of the criminal charges against Trump based on the available evidence. The January 6 House committee promised to provide compelling evidence to support criminal charges, but After eight hearings, he still has not presented that case. Even some Democratic figures do, including former U.S. Attorney and former Sen. Heidi Heitkamp (DN.D.). I don’t believe a strong case has been made for indictment
I have It is kept for a long time When there is clear evidence of a crime, including the cases of former presidents Nixon and Clinton, the current or former president should be charged. However, the Justice Department has long taken a more cautious approach. Although a federal judge declared that Clinton had committed perjurywhich even some of his fans admitted, no charges were brought against him. It is recognized that such prosecution – even a clear case like Clinton’s – It can divide the nation when it needs to move forward.
I have always opposed this view and believe that if a president commits a crime, prosecution strengthens the nation by demonstrating his commitment to the rule of law.
However, this is not an invitation to improvisation or impulse. If a former president is to stand trial, the case must be strong enough to rule out any question of political motivation or influence.
This is not the current case against Trump.
While Trump was impeached for inciting a riot, there has been a significant change from that. Suspicious basis of indictment. Most current requests for prosecution focus on conspiracy to defraud the United States (18 U.S.C 371) and obstruction of an official process (18 § USC 1512 (c)).
Any prosecution must overcome important constitutional hurdles, including protections for free speech and the right to protest (and call for such protests). However, the main problem remains Trump’s state of mind.
Trump believes the election was stolen and he has a legal basis to challenge its certification. Democrats in Congressincluding some members of the January 6 committee) have challenged the certificates of previous elections, including Trump’s victory in 2016. Past electoral disputes also involved competing lists of electors being presented to Congress. And Trump had a team of lawyers advising him that the claims were valid.
Democrats have tried to undermine such a defense by pointing to Trump’s personal lawyers.crazy teamAnd he noted that not only White House advisers, but most legal experts disagreed with their analysis. They insist that no one believes the claims are valid. However, the committee’s case was made without balance in the presentation of evidence. Even quoting from Trump’s much-condemned speech, the committee regularly edited out his line that “I know everyone here will soon be marching on the Capitol to peacefully and patriotically make your voice heard.” people deliver.”
Some insist that Trump’s state of mind can be dismissed as “willful blindness” and that he should have known there was no evidence of widespread election fraud. It is true that willful blindness can be used by prosecutors when they cannot prove actual knowledge, but this is highly controversial. like the An expert noted“There is a tremendous amount of confusion in this area of law and an underlying sense that something is fundamentally wrong.”
They can appear even more “wrong” when a government prosecutes a former (and possibly future) political opponent. Even under the alternative view, “will” does not include politically delusional or rebellious defendants. Millions of Americans still believe there is evidence of election fraud. Furthermore, the January 6th Committee has portrayed Trump as a bewildered narcissist who refused to accept defeat against Biden. Even the former Attorney General William Barr said that Trump refused to express dissenting opinions and added“I thought, boy, if he really believes in this stuff, you know, he’s out of touch, out of touch with reality.”
Perhaps, but Trump will not be condemned for losing his grasp of reality. He argued that he had a crowd of lawyers around him who supported this view.
True, the odds of Trump being convicted of any crime in front of a Washington DC jury are very high. In a city where Biden is over 92% of its votes (and Trump by roughly 5 percent), the defense couldn’t face a worse jury.
However, that doesn’t mean it will stand up on appeal. Meanwhile, a weak or creative case for conviction will tear the country apart.
For a rival government to prosecute him, the case would have to be more than plausible. It must be impenetrable.
Prosecutors need more than just repetition “Unimaginable” Trump did not know that he had lost the election. In The Princess Bride, this was the main line for Vizzini’s character, who used it to avoid any questioning of himself. For many of Trump’s critics, the goal is the same.
They believe it is “inconceivable” that Trump believed what he said about the election being “stolen” – so what he said must have been criminal.
But as another character in the film tells Vizzini, “You keep using that word. I don’t think it means what you think.”
In a criminal case against a past or current president, it means less. Garland needs more than a vizini charge to file a lawsuit against Trump.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.