As former President Donald Trump braces for two separate trials over his alleged efforts to overturn the 2020 presidential election, his lawyers are scrambling to come up with legal defenses that could test the limits of the law and the Constitution.
They've signaled that they will argue that Trump was merely exercising his First Amendment rights when he spread baseless claims that the election had been stolen and then pressed state officials to change the results in his favor.
They will contend that the former president was simply following the counsel of his lawyers who advised him he had the right to "petition" the officials to investigate fraud.
And they may even invoke the idea that as president he should be immune from prosecution, arguing that the actions he took after the election were related to his presidential duties.
But legal experts say when the case goes to trial the key question the jury will have to answer is: Did Trump know he had lost the election?
"A jury is not going to focus on whether he had a First Amendment right to petition for redress of grievances and [is] not going to focus on whether he had any executive privilege to meet with his vice president and urge him to not count the votes from the swing states that were contested," said John Malcolm, a former federal prosecutor who is a senior legal fellow at the Heritage Foundation. "They're going to focus on the president and his belief."
Election indictments
Trump faces two separate indictments in connection with the 2020 election scheme that culminated in the Jan. 6, 2021, attack on the U.S. Capitol.
On Aug. 1, a federal grand jury in Washington issued a four-count indictment, accusing Trump of conspiracy to defraud the United States, conspiracy against the rights of citizens, obstructing an official proceeding and conspiring to obstruct an official proceeding.
Then last week, a grand jury in Georgia indicted Trump and 18 others for racketeering and a raft of other crimes in connection with efforts to overturn the election outcome in that state.
While the state and federal cases are different in scope, they both alleged election fraud and require that prosecutors prove "mens rea" or criminal intent on the part of Trump, according to legal experts.
"In both jurisdictions, general principles of criminal law in the U.S. probably are quite relevant," said Morgan Cloud, a professor of law at Emory University in Atlanta. "Not all, but most crimes, including felonies like the ones charged in these current federal and state indictments… require proof of… mens rea."
Trump has long claimed that he lost the 2020 election fraudulently, despite no evidence of that assertion, and his lawyers are now challenging prosecutors to disprove his sincerity.
"I would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations were false," John Lauro, who represents Trump in the special counsel case, told Fox News after special counsel Jack Smith announced the federal charges against Trump.
Circumstantial evidence
Proving criminal intent can be challenging but it's not impossible, according to legal experts.
To prove criminal intent, prosecutors can use two types of evidence: direct and circumstantial.
Direct evidence shows a defendant's state of mind or actions, while circumstantial evidence can imply a guilty mind.
In Trump's case, direct evidence could include testimony about his private admission that he had lost the election. At least two former White House aides have come forward with claims to that effect. One of them, Cassidy Hutchinson, testified before Congress last year that she was told by her boss, former White House chief of staff Mark Meadows, that "a lot of times (Trump will) tell me that he lost, but he wants to keep fighting it."
Prosecutors can also marshal circumstantial evidence to prove Trump knew he had lost. Among other things, they can cite testimony by senior Justice Department officials, White House aides, and Trump's own campaign staff who told Trump that they had found no evidence of widespread fraud.
Though circumstantial, this kind of testimony can persuade a jury that Trump knew he had lost the election.
A "myth I think people have is that you have to have the smoking gun, the guy on the audiotape saying, 'I did it," but you don't," said Kimberly Wehle, a former federal prosecutor now a professor of law at the University of Baltimore. "You can prove crimes beyond a reasonable doubt with circumstantial evidence."
Yet Trump, notorious for rejecting expert advice, could claim he was swayed by other advisers who insisted the election was stolen.
"I don't think there's any question that there were people around former President Trump at the time who were telling him that he was not wrong, and that the election really had been stolen," Malcolm said.
Without proving Trump's criminal intent, Malcolm said, "the case collapses."
