This debate largely involves people talking past one another. While it’s true that special counsel Jack Smith does not need to prove that Trump knew better to prove every alleged crime, it’s also evident that it would help. And more than that, it’s evident that Smith intends to prove it — about 20 pages of his 45-page indictment focus on this point — precisely because he views it as being helpful in establishing Trump’s allegedly corrupt actions.
Because of the legal intricacies involved here, more than a few people have set out to explain this by way of analogy. But these analogies tend to be imperfect.
Perhaps the most popular one involves a bank robbery: Just because someone believes the bank owes them a bunch of money, the analogy goes, doesn’t mean they can just go rob it.
This is imperfect because there are legal ways to contest and even try to overturn an election, but there is no legal way to rob a bank.
You could argue that what Trump is actually charged with — his actions rather than his claims, as Smith takes care to emphasize — are tantamount to attempted bank robbery. But one of the charges is “conspiracy to defraud the United States.” The Supreme Court in 1924 said that that crime means “to interfere with or obstruct one of [the country’s] lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.”
“It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention,” the court wrote in Hammerschmidt v. United States.
Another analogy offered is that Trump’s absolutist First Amendment defense is akin to saying that any speech — even speech setting up a drug deal or planning a murder — is protected.
This is perhaps closer to an apples-to-apples comparison. Trump lawyer John Lauro last week said “the First Amendment protects all speech,” before reeling that in slightly to say “political speech, under the First Amendment, has an almost absolute protection.”
While even lying can be protected speech, lying in the service of a crime is not. Where this analogy falls short is in its assumption that Trump was lying in furtherance of an incontrovertible crime. Drug deals and murders are obvious crimes; attempts to overturn an election — involving “fake electors” and a constitutionally dubious scheme on Jan. 6 itself — involve more interpretation.
Which brings us to another comparison. In the service of arguing that Trump’s belief was neither here nor there legally, some have noted that other Jan. 6 defendants — those charged with crimes on the Capitol grounds that day — have unsuccessfully defended themselves by citing their own genuine beliefs that the election was stolen.
“Belief that your actions are serving a greater good does not negate consciousness of wrongdoing,” a federal judge wrote last month in such a case.
Like the drug deal or murder-plot analogies, this overlooks the fact that the actual conduct of the other Jan. 6 defendants is more easily attached to specific crimes. Their crimes include unlawfully entering the Capitol, disorderly conduct, assaulting police officers and even obstructing an official proceeding. That last one is a charge Trump also faces, but the other defendants’ conduct is easier to directly link to the obstruction of an official proceeding because they were part of the mob in the building that delayed the proceeding.
We’re left with a question: What would be a better analogy?
To return to the bank-involved one, perhaps we could offer a slight variant: making false representations and conspiring with others to get a bank to give you money you claim you are owed.
Your conduct in the course of trying to get that money could itself be illegal, regardless of whether you actually believe the bank owes you. You could draft documents that you argue back up your case, but you’d risk those documents being charged as forgeries if they aren’t ironclad (like the alternate-elector certificates). The bank could tell you over and over again that your claims aren’t true, as many top officials in the U.S. government allegedly told Trump, raising the prospect that you truly knew better and pressed forward despite it. You could go to court to try to get judgments that help you, but if you don’t get them, that says plenty about your claims.
There are also legitimate ways for the bank to give you money if you are, in fact, owed it. But that doesn’t mean every avenue for reaching that outcome is legal as long as your conviction is true.
Your knowledge of the falsity of your claims to that money would surely help establish that you were committing crimes against not only the bank (the government, in this analogy), but arguably those who have deposits in it (the American people, whose right to have their votes legitimately counted the indictment alleges Trump conspired to violate).
Now we see whether Smith can actually show that Trump knew he couldn’t take such arguments to the bank.
