Opinion | Why the Trump Jan. 6 indictment will fail (2024)

Smith might have a much harder time proving his case than he and Trump’s many and most vociferous detractors realize. I have never had the slightest suspicion that the 2020 election was stolen, as I have told Trump personally. But I also don’t doubt that he sincerely believed that victory was denied him by the many irregularities in the 2020 election season.

Again, I think Trump is wrong, and there is zero evidence of material voter fraud sufficient to flip one, much less three or four, of the states that went to Joe Biden. But I can see how Trump arrived at his mistaken suspicions. A fair-minded jury might well see it, too. When the “beyond a reasonable doubt” standard is applied, I don’t see a conviction on any of the charges Smith leveled.

Consider the effect that absurd, distorted polling by the mainstream media might have had on Trump’s state of mind. To cite just one example, a pair of Post-ABC News polls that were announced a week before the election had Joe Biden winning Wisconsin by 17 points; yet he barely edged out Trump, by 0.7 percent, or fewer than 20,800 votes. Terrible polling that makes results seem a foregone conclusion has the effect of soft voter suppression, and it causes the misallocation of campaign resources. Of course 2020 polling failures, often by tacitly pro-Biden organizations, contributed to Trump’s loss.

During the campaign season, there were several unprecedented events that would cause plenty of people to suspect that attempts to skew the election were afoot. One was the effort by major news outlets and social media platforms to suppress information about the contents of a Hunter Biden laptop found in a repair shop. While early voting was underway, 51 former intelligence officials wrote a public letter, which was granted wide media coverage, asserting without evidence that the laptop’s discovery suggested “this is Russia trying to influence how Americans vote in this election, and we believe strongly that Americans need to be aware of this.”

State after state loosened voting rules because of the pandemic — perhaps understandable, but unprecedented nonetheless. Facebook founder Mark Zuckerberg and his wife, Priscilla Chan, donated an unprecedented $419 million to fund government election offices nationwide, a move that many on the right perceived as veiled support for Democratic turnout.

A film produced by Republican National Committee member David Bossie, “Rigged: The Zuckerberg Funded Plot to Defeat Donald Trump,” explores how the 2020 presidential election left more questions than answers and investigates Zuckerberg’s role. “Rigged” looks at the millions Zuckerberg spent nationally on election administration, particularly in the battleground states of Wisconsin, Arizona and Georgia. Just 43,000 votes in those three states made the difference for Biden.

Similarly, Fox News contributor and Federalist editor Mollie Hemingway wrote a book also called “Rigged,” with the subtitle “How the Media, Big Tech, and the Democrats Seized Our Elections,” covering Zuckerberg and much more. Neither the film nor the book provides a smoking gun that reveals Zuckerberg was doing anything other than trying to ensure election integrity, but Trump, interviewed in the film, is certainly not alone in embracing the “rigged” basic premise.

Should Trump’s defense team try to ensure that jurors see the film and are provided with a copy of the book as a way of shedding light on his frame of mind? Yes, if Trump is to be accorded due process.

The defense should also summon many of the 51 former intelligence officials who signed the letter suggesting the Hunter Biden laptop was likely Russian disinformation — the letter itself amounted to disinformation — to explain who organized the effort and how they reached their conclusions. The campaign by these former government officials to protect Joe Biden undoubtedly affected how Trump perceived the 2020 race.

The Post, summarizing comments from Trump attorney Alina Habba, said last week that Trump’s defense team intends to “show at trial that the former president believed that there were problems with the 2020 results, though his attorneys will not have to prove that the election result was fraudulent.”

Again, there is no evidence that even one voting machine was “rigged,” but the internet was full of false charges and sensational reporting on the subject, stirring distrust and prompting millions of Americans to mistakenly perceive something sinister afoot rather than just unusual and at times chaotic. Trump inhaled of that atmosphere daily, and deeply.

In the special counsel’s indictment, a key allegation appears in Paragraph 83, asserting that Trump conceded to Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, and others on Jan. 3, 2021, that he would leave a national security issue to the new president. The special counsel appears to think this proves Trump knew he had lost the election and thus his “knowingly false claims” about it were an attempt to “defraud” the country.

But Trump’s conversation does not in any way rebut the idea that he believed an election fraud had been worked upon him. Why does a football coach try a “Hail Mary” pass late in a close game that he seems destined to lose, even as he’s thinking about his postgame locker room talk? Because on very rare occasions, it works. The former president could have recognized that the odds were heavily against him, and even planned to leave office, while hoping his political Hail Mary would work — would make things right in his view and the view of millions of his most ardent supporters. That view doesn’t make him right, but it doesn’t make him a criminal.

Holding tight to far-fetched hopes, especially amid a miasma of supporting narratives, is not a crime. The idea of charging it as one is ridiculous and sets an awful precedent that will haunt this republic down the years.

How will the government prove that the former president did not believe what he so obviously did? John Lauro, an able and articulate lawyer leading Trump’s defense in this case, says he might call more than 100 witnesses. Good. A truly unbiased jury with no preconceived conclusions will have to be educated on all the unusual and controversial circ*mstances that contributed to Trump’s suspicions.

Wherever the trial eventually unfolds and before whom it is heard — Trump’s team will undoubtedly file motions to move the trial outside the Beltway — the presiding judge has an obligation. The Justice Department’s charges are so novel, not least because a former president is being criminally prosecuted by the administration of his likely 2024 opponent, that Trump’s legal team must be granted wide latitude to produce evidence showing jurors how the former president formed his bedrock conviction that the election was stolen.

Republican consultants are saying, and I agree, that the Trump team’s plan for a trial lasting many months, with dozens of witnesses, could damage the GOP in 2024 because the country long ago moved on from the 2020 election and its aftermath. The American electorate is forward-looking, unused to re-litigating elections, but the former president is facing incarceration for the rest of his life. Let him make his case as he wishes. Move it to a jurisdiction as divided as the country, away from one of the deepest-blue jury pools in the nation. His lawyers cannot put forward false evidence. But they have a right to lay before an unbiased jury every bit of evidence that could present a reasonable doubt about the prosecution’s assertion that Trump didn’t believe what he so clearly did, and does.