How Jack Smith can prove Trump knew he lost the 2020 election

Count one of Special Counsel Jack Smith’s Aug. 1 indictment of Donald Trump alleges that he used “knowingly false” claims of election fraud in a conspiracy to overturn the results of the 2020 presidential election. To help prove Trump’s guilt, prosecutors will seek to demonstrate that Trump knew his fraud claims were false. There are strong reasons to think Smith and his team will succeed.   

The prosecution will almost certainly call witnesses who will swear that Trump privately acknowledged losing the election. Cassidy Hutchinson, former assistant to Trump’s chief of staff, Mark Meadows, testifying before the January 6th House Select Committee described conversations in which Meadows and other White House staff reported hearing Trump admit he lost.   

Between the election and Jan. 6, 2021, Trump was aware that he and his allies were losing state and federal lawsuits alleging election fraud, the total reaching 61 by early January. Trump also knew that no state legislatures were acting to change their electoral college votes.  

As president, Trump had unmatched access to information on vital national issues, including the integrity of the election. In fact, he was told repeatedly by senior administration, campaign and state officials (most of them Trump appointees or loyalists) that claims of outcome-determinative election fraud were either unsubstantiated or found to be false. 

Besides persisting in his claims of election fraud after having been told by authoritative sources they were baseless, Trump showed in other ways that he was uninterested in facts and evidence: 

• He pressured top Department of Justice officials, telling them, “Just say the election was corrupt and leave the rest to me and the Republican congressmen.” 
• Trump tried to install an ally as acting attorney general and have him send a letter to key states, falsely claiming the Department of Justice had found irregularities in some of the state election results, hoping to dissuade the states from assigning their electoral votes to Biden. 
• Trump asked Georgia Secretary of State Brad Raffensberger to “find” 11,780 votes — just enough for Trump to win the state. 
• When Raffensberger sought to give Trump the link to a site disproving one of his fraud claims, Trump responded, “I don’t care about a link, I don’t need it . . . .  I have a much better link.” 
• In a Jan. 4 White House meeting, after Trump lawyer John Eastman assured Vice President Pence he had “unilateral” authority to halt Congress’s electoral vote certification but, when pressed, admitted it had never been tested in court, Pence exclaimed to Trump, “Did you hear that? Even your own counsel is not saying I have the authority.” Trump replied, “That’s okay, I prefer the other suggestion,” that the vice president could act on his own to stop the official count. 
• Just hours after Pence had insisted to Trump he lacked authority to intervene in the certification process, Trump sent out a patently false tweet telling supporters he and Pence were “in total agreement that the vice president has the power to act.” 
• On Jan. 6, Trump falsely tweeted that many states wanted to “decertify” their electoral votes for Biden. 

If Trump’s attorneys argue (as they have suggested they will) that Trump did not know his claims of election fraud were false because he sincerely believed them, they will face difficult challenges.   

Given expected testimony that Trump had conceded to some staff that he lost, dozens of failed lawsuits, the vast informational resources available to a president, the fact that reliable sources told Trump there was no significant fraud and Trump’s habit of lying, it cannot simply be assumed that Trump believed his fraud claims. 

Nor can it just be asserted that Trump believed them since assertions in court require evidence. Since believing is a state of mind and not empirically observable, courts may look to a defendant’s behavior for evidence he had the belief in question. In Trump’s case, the problem is that, while some of his actions are consistent with his believing the fraud claims, his behavior generally between the election and Jan. 6 is much more consistent with his knowing those claims were false and continuing to assert them publicly in an attempt to hold on to the presidency. 

Assuming Trump is not an irrational person, his attorneys will have to show that he had credible evidence his claims were true — evidence that made it rational for him to believe them rather than what he was told by numerous high-level sources in positions to know. Unable to point to such evidence on which Trump’s putative beliefs in election fraud were based, it is very unlikely his attorneys can rebut the prosecution’s powerful case that Trump knew his incendiary claims were false. 

Dana M. Radcliffe is the Day Family Senior Lecturer of Business Ethics at the SC Johnson College of Business at Cornell University. He also teaches ethics and public policy at Syracuse University’s Maxwell School of Citizenship and Public Affairs.