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Trump Prosecution Hinges on AG, State-of-Mind Evidence

While the legal brief from the House committee investigating the Jan. 6, 2021, Capitol riot made a major splash by raising the prospect of a criminal prosecution of former President Donald Trump and his associates, federal criminal charges for Trump's efforts to overturn his 2020 election loss appear unlikely, Reuters reports. Legal experts said Attorney General Merrick Garland has long appeared hesitant to charge Trump, and demonstrating Trump showed clear evidence of criminal intent is a high hurdle to clear. "It would be a monumental thing for our nation if the Justice Department charged a former president with a crime of undermining our democracy," said Jessica Levinson, a professor at Loyola Law School in Los Angeles. "There could be a lot of evidence, but the Justice Department is not going to do it unless they have crossed every 't' and dotted every 'i.'"

That evidence is not completely lacking, however. Quoting documents released by the House committee, the New York Times reports there were numerous instances when Trump was explicitly warned that his claims of widespread voting fraud were meritless, yet he persisted in seeking to void the election results to maintain a hold on the office. By the accounts of his own campaign aides, White House lawyers, two successive attorneys general and federal investigators, Trump went beyond stubbornness or ignorance about his defeat to knowingly advance a fraudulent claim. At one point, Trump did not seem to care whether there was any evidence to support his claims of election fraud, and questioned why he should not push for even more extreme steps, such as replacing the acting attorney general, to challenge his loss. “The president said something to the effect of: ‘What do I have to lose? If I do this, what do I have to lose?’” Richard P. Donoghue, a former top Justice Department official, told the committee in an interview. “And I said: ‘Mr. President, you have a great deal to lose. Is this really how you want your administration to end? You’re going hurt the country.’” The state-of-mind question is complicated by Trump's personality, one expert suggested. “To the extent that prosecutors have to show intent, Trump’s delusion makes that harder,” said Alan Rozenshtein, a former Justice Department official who teaches at the University of Minnesota Law School. “A finder of fact could conclude that Trump is so uniquely narcissistic and self-absorbed that he actually thought the election had been stolen.”


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