In the tradition of the Clintonometer, the Trump Apocalypse Watch, and the Impeach-O-Meter, the Is It a Crime-O-Meter is a wildly subjective and speculative estimate of whether the Jan. 6 select committee’s work will convince enough individuals of relevance (prosecutors, juries, voters) that Donald Trump committed insurrection-related crimes that he should be, in some fashion, held accountable for them.
How many lawyers and other experts have to tell Donald Trump the same thing before we can agree he “knows” a thing?
This was the unspoken theme of last Thursday night’s primetime Jan. 6 select committee hearing, at least from a legal perspective. Committee chairman and Mississippi Rep. Benny Thompson said in his opening remarks that the series of planned hearings will depict “a sprawling, multi-step conspiracy aimed at overturning the presidential election,” and prove that “Donald Trump was at the center of that conspiracy.”
It became clear even during Thompson’s statement, when he played a clip of former attorney general William Barr saying that he’d told Trump that his stolen-election theories were “bullshit,” that the first step in that process is proving that the former president truly knew he lost the 2020 election to Joe Biden. Trump, the committee is arguing, was aware he was attempting to overturn a legitimate result rather than pursuing a good-faith inquiry into fraud.
To that end, the committee also played a clip of Ivanka Trump saying she trusted Barr’s assessment, followed by a clip of Trump communications adviser Jason Miller testifying that he’d told the president his own campaign data team had concluded he’d lost the race, and another clip of campaign lawyer Alex Cannon testifying that he’d told chief of staff Mark Meadows that the result could not be reversed through litigation, and one more audio clip of former acting deputy attorney general Richard Donoghue saying that he’d informed the White House that a Department of Justice investigation of “voter fraud” would be inappropriate and unprecedented.
The hammering of this point might have something to do with committee members’ awareness that Trump has a history of justifying seemingly illegal behavior by insisting that he was not aware of something that was obvious, even at the time, to many other people. “No collusion” and “no quid pro quo” were the catchphrases the ex-president used to convey this message during, respectively, the Robert Mueller Russia investigation and the congressional Ukraine investigation that led to his first impeachment.
In the first case, Trump claimed both that Russia hadn’t really attacked Hillary Clinton, that he was not unusually friendly toward Vladimir Putin, and that those two facts were not related. In the second, Trump claimed that telling Ukraine’s president that he needed to announce an investigation into Hunter Biden before his country received the weapons that had been appropriated to it by Congress did not constitute the trading of an official act for a personal favor because he (Trump) was, in fact, genuinely concerned about corruption in the Ukrainian energy sector.
Trump also said something similar, albeit without creating a tagline for it, after it was revealed that he’d made convoluted, secret payments during the 2016 campaign to the National Enquirer’s parent company in order to suppress the accounts of two women who said they’d had extramarital affairs with him.* In that case, he claimed that he shouldn’t be held accountable for violating campaign-finance disclosure laws because he’d arranged the payments in the presence of a lawyer and the lawyer hadn’t told him he was doing anything illegal.
The committee’s work in this situation, then, is prophylactic, intended to discredit any future claim that Trump’s conduct before and on Jan. 6 took place under the genuine impression that the election was “stolen” by Biden. (Indeed, on Friday, Trump wrote on his Twitter-like “Truth Social” platform that “The so-called ‘Rush on the Capitol’ was not caused by me, it was caused by a Rigged and Stolen Election!”)
Whether this is effective in the court of public opinion remains to be seen, but should any prosecuting body choose to pursue it in an actual court, the concept of “willful blindness” will likely come up. As a Georgetown Law professor and former prosecutor for the United States Attorney’s Office for the Southern District of New York, Julie O’Sullivan says, “this is the sort of situation that a willful blindness/conscious avoidance/’ostrich’ jury instruction is made for.” This instruction, O’Sullivan explains, is given by judges to juries in order to allow them to find a person acted “knowingly” even in the absence of direct evidence about their state of mind. (O’Sullivan gave an example of the kind of words a jury might hear in such a case: “If you are convinced that the defendant ignored a high probability that [the fact existed], then you may find that he knew [it].”)
That said, there were some people telling Trump in the months after the election that fraud had taken place. The committee seemed to be trying to acknowledge this while framing it advantageously by identifying those individuals (e.g. Rudy Giuliani, attorney Sidney Powell, and interim attorney general Jeffrey Clark) as outsiders who have poor reputations, lack subject-matter expertise, and were only elevated after long-trusted, more-credible advisers told the president that he did not have a legitimate case to remain in office.
And yet … can a man who once suggested with seeming conviction that COVID-19 could be cured by injecting bleach into the body ever really be said to “know” or “not know” anything at all? Who has said on many occasions that he was once named “Michigan Man of the Year” in apparent reference to the time he was asked, in 2013, to appear (but not receive an award) at something called the “Oakland County Lincoln Day Dinner”? Who once said the following in a presidential debate?
In Europe, they live—they’re forest cities, they’re called forest cities. They maintain their forest. They manage their forest. I was with the head of a major country—it’s a forest city. He said, “Sir, we have trees that are far more, they ignite much easier than California. There shouldn’t be that problem.”
For someone to know something is true when they’re saying it, there must be an operation that their brain performs in which some sort of homunculus takes an elevator to a level called “reality,” looks around, and decides whether or not to accurately convey what it’s seen to the part of the brain that does talking. If I were Donald Trump’s attorney, I would simply attest that this process, if it ever happened inside his brain, has not occurred for at least a decade, having been replaced by a system in which the homunculus fills whatever details would best meet the needs of a different, tiny monster that represents the concept of “whatever Donald Trump wants.” Could even the finest jurist prove otherwise?
Our meter will thus start at the “maybe some crimes” level, acknowledging both the weight of the evidence and the historic irrelevance of things like “evidence” to Donald Trump-related criminal justice outcomes.
*Correction, June 10, 2022: This piece originally stated in error that Trump’s “hush money” payments were made during the 2020 campaign. They were made during the 2016 campaign.
Additional reporting by Jeremy Stahl