From my years as a daily newspaper reporter, I’m still in the habit of filling in the other side of any story that politicians are peddling to me. That habit returns as I watch the House Select Committee’s hearings on the January 6 attack on the Capitol, which have made for fascinating television but offer a very one-sided rendition of the facts.
What defense could Donald J. Trump offer if the hearings end up prodding Attorney General Merrick Garland to seek the former president’s indictment? What if there were actually an indictment, and all possible legal obstacles to it—First Amendment concerns, separation-of-powers arguments, and attorney-client privilege among them—were cleared away so that there was a trial, with all its give-and-take, to determine the facts? Trump’s lawyers would be left to argue that he actually saw merit in the “big lie” that the 2020 election had been stolen from him. Or, in legal terms, that he lacked the intent to violate whatever law prosecutors throw at him: seditious conspiracy, obstruction of an official proceeding, fraud.
To win a conviction, prosecutors would have to persuade twelve jurors to affirm, beyond a reasonable doubt, that Trump had acted with corrupt intent to violate whatever statute he is charged under—that he was aware of his wrongdoing. Garland will need to decide how likely that is.
With the attorney general likely in mind, the January 6 committee targeted that potential defense like a squadron of tank-chasing drones at its June 13 hearing. The damning deposition testimony of Trump’s own campaign manager, Bill Stepien, and of former Attorney General William Barr and various other Trump aides went a long way toward showing that Trump knew full well that he had lost the election to Joe Biden. Consider, too, that “smoking gun” evidence isn’t required to prove corrupt intent; circumstantial evidence can do the job as well, as is often the case.
But left standing is the potential for Trump to claim he simply relied on the counsel of one team of advisors—led by his personal lawyer, Rudolph Giuliani—over a second group, the one Stepien said could be described as “Team Normal.” Giuliani was, after all, once one of the nation’s most formidable prosecutors. He thus becomes a central figure in any case to be made against Trump.
Rulings in civil cases brought against Giuliani give some indication of how this might play out in court. The Appellate Division of New York State Supreme Court reviewed some of Giuliani’s most outrageous claims about the 2020 election and found in them “uncontroverted proof” of Giuliani’s professional misconduct. One example is Giuliani’s repeated, bogus claim that Pennsylvania collected 766,094 more absentee ballots than it sent out, allowing for hundreds of thousands of fabricated mail-in ballots. In fact, the state sent out 580,000 more mail-in ballots than it collected, a fact the court said could be easily verified on the state government’s website. Giuliani claimed it was a mistake made by some member of his team, but provided no evidence of that, such as an affidavit from whoever made the error.
The court similarly dismantled many other claims, including Giuliani’s charge that thousands of “dead” people voted in Philadelphia, that tens of thousands of voters in Georgia were underage, that 2,500 felons voted illegally in Georgia, that 32,000 non-citizen immigrants voted in Arizona.