Piecing Together What Trump Knew and When He Knew It
When Donald Trump claimed that he had won the 2020 election—and when he exhorted his followers, on that basis, to march to the Capitol on January 6, 2021—did he know that his claim wasn’t true?
The answer to that question isn’t obvious. One could argue, based on Trump’s public behavior, that he was pathologically deluded and sincerely thought he had won. If some jurors buy that theory—if they decide that Trump was sincere, albeit wildly wrong—it might be hard to convict him of the crimes for which the House January 6th Committee has recommended his prosecution.
On Monday, in its final hearing, the committee referred Trump to the Department of Justice for possible indictments based on four statutes. One of the statutes, 18 U.S.C. § 1512, applies only if the accused person “corruptly” sought to impede an official proceeding. Another, 18 U.S.C. § 371, applies only if he conspired to “defraud” the government, using “deceit, craft or trickery.” A third, 18 U.S.C. § 1001, applies only if he “knowingly and willfully” made false or fraudulent statements.
In the hearing and in the “introductory material” the committee released in anticipation of its full report later this week, the panel’s members concluded that Trump knew enough to be charged with these crimes. Here’s their evidence.
1. Trump planned to claim fraud long before he had any plausible basis. “In the weeks before election day 2020, Donald Trump’s campaign experts, including his campaign manager Bill Stepien, advised him that the election results would not be fully known on election night,” says the report. Despite this, the committee found “a range of evidence”—to be fleshed out in the full report—“of Trump’s preplanning for a false declaration of victory.”
2. Trump ignored his campaign manager’s warnings on election night. In conversations with Trump as the returns came in, “Stepien and other campaign experts advised him that the results of the election would not be known for some time, and that he could not truthfully declare victory,” says the report. Trump “refused” to accept these warnings, and he declared victory that night.
3. After the election, every knowledgeable person in the government and in Trump’s campaign told him that his claims were false. The report quotes Trump’s then-attorney general, Bill Barr: “I repeatedly told the president in no uncertain terms that I did not see evidence of fraud . . . that would have affected the outcome of the election.” Barr said he had told Trump that his allegations were “not panning out” and “not meritorious.”
Richard Donoghue, who was then Trump’s acting deputy attorney general, told the committee that he and the acting attorney general who succeeded Barr, Jeff Rosen, had tried “to put it in very clear terms to the president.” Donoghue said he had explained to Trump that the Justice Department had examined allegations in “Georgia, Pennsylvania, Michigan, Nevada.” He said he had told Trump “something to the effect of ‘Sir, we’ve done dozens of investigations, hundreds of interviews. The major allegations are not supported by the evidence developed.’”
Pat Cipollone, Trump’s White House counsel, told the committee that in a meeting with Trump and a circle of election-fraud conspiracy theorists (led by Sidney Powell) on Dec. 18, 2020, he had told the group that “I had seen no evidence of massive fraud in the election. . . . That was made clear to them, okay, over and over again.”
Jason Miller, a senior adviser to Trump’s campaign, said he had told the president “several” times that as to “election day fraud and irregularities, there were not enough to overturn the election.” He also said he told Trump that “the international allegations” against Dominion Voting Systems, the electronic voting company that pro-Trump conspiracy theorists were targeting, “were not valid.”
4. Trump repeated numerous false statements shortly after being told they were false. The report details eighteen cases in which this happened, compiled in a handy table. The most damning examples are from Trump’s Jan. 2, 2021, phone call with Georgia Secretary of State Brad Raffensperger, which was recorded. For instance, Raffensperger told Trump that the story the president was spreading about ballots being counted three times in one county was false. Raffensperger explained that video evidence debunked Trump’s story, and he offered to send Trump a link to the video.
Trump replied: “I don’t care about a link. I don’t need it.”
The next day, Trump completely misrepresented the phone call, tweeting: “I spoke to Secretary of State Brad Raffensperger yesterday . . . He was unwilling, or unable, to answer questions such as the ‘ballots under table’ scam, ballot destruction, out of state ‘voters’, dead voters, and more.”
The “dead voters” allegation is another example. In the phone call, Trump claimed that “dead people voted” in Georgia and that the “minimum is close to about 5,000 voters.” Raffensperger then explained to Trump that he had checked out this allegation and “the actual number [was] two. Two. Two people that were dead that voted. So that’s wrong.”
Trump ignored the correction. In fact, in his speech just before the Jan. 6th attack, he doubled the figure: “Over 10,300 ballots in Georgia were cast by individuals whose names and dates of birth match Georgia residents who died in 2020 and prior to the election.”
The report also notes that Barr, in a Nov. 23 meeting with Trump, debunked the president’s wild statements about Dominion. “I specifically raised the Dominion voting machines,” Barr told the committee. “I saw absolutely zero basis for the allegations. . . . I told him that it was crazy stuff and they were wasting their time on that.”
Three days after that meeting, Trump repeated the same smears: “[T]hose machines are fixed, they’re rigged. You can press Trump and the vote goes to Biden. . . . All you have to do is play with a chip, and they played with a chip, especially in Wayne County and Detroit.”
5. Trump acknowledged that his claims didn’t check out. Stepien told the committee that he had investigated Trump’s allegations and had told the president, in each case, that the claim “wasn’t true.” The committee’s interviewer asked Stepien how Trump had reacted to these corrections. “Usually he had pretty clear eyes. Like, he understood,” Stepien recalled. “We told him where we thought the race was, and I think he was pretty realistic with our viewpoint, in agreement with our viewpoint . . .”
6. Trump acknowledged that he had lost. Cassidy Hutchinson, who had served as a special assistant to the president, told the committee that in mid-December 2020, when the Supreme Court dismissed a suit to block the election results, Trump was furious. She said she had heard Trump tell Mark Meadows, who was then his chief of staff, “something to the effect of, ‘I don’t want people to know we lost . . . I don’t want people to know that we lost.”
The committee says these incidents prove that Trump knew his allegations were false, and therefore he had the corrupt intent necessary to be charged with violations of the statutes. The report also notes that David O. Carter, a federal district judge, essentially agreed with this conclusion, in two separate opinions handed down in March and October. In the latter, Carter noted that the evidence presented in his court showed that Trump “knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public.” Carter also assessed, in the earlier opinion, that Trump “likely knew [his] electoral count plan had no factual justification.” Therefore, Carter, concluded, Trump’s “mindset exceeds the threshold for acting ‘corruptly’ under § 1512(c).”
Personally, I’m sympathetic to the argument that Trump thought he had won. He’s a deranged narcissist. He believes what he wants to believe. As a citizen, I agree that for this reason, among others, he should never be anywhere near political power. But as a juror, I’d have to be persuaded that he meets standards such as “knowingly,” “willfully,” “deceit,” and “defraud.”
The committee’s preliminary report goes a considerable way toward persuading me. A man who goes around repeating stories that he has been told are false, again and again, is certainly being willful. And by concealing what he’s been told—or, in the case of his interactions with Raffensperger, egregiously misrepresenting what he’s been told—he knowingly deceives the public. I’m not sure how many times a spreader of bogus allegations has to be corrected before his defiance of corrections counts as deceit. But it’s less than eighteen.