Below is my column in the Hill on the ongoing federal grand jury investigation reportedly looking into January 6th and potential criminal charges against former president Donald Trump. If there is an indictment, it cannot be based on a Vizzini charge that it is simply “inconceivable” that anyone would believe that there was widespread election fraud. Notably, a new Harvard study has found that most people who went to the Capitol on January 6th did so in loyalty to Trump rather than to engage in insurrection. Millions continue to believe that the election was stolen. However, any case would likely be tried in Washington, D.C., which constitutes arguably the worst possible jury pool politically for the former president.
Here is the column:
This week, CNN received a 282-page letter from former President Trump. The “Notice of Intent” to sue includes dozens of past transcripts and online stories of unrelentingly anti-Trump coverage on the network. However, there is one line that stood out; it stated that Trump “subjectively believes that the results of the 2020 presidential election turned on fraudulent voting activity in several key states.”
The line does not make a case for civil defamation — but it could offer a criminal defense if Attorney General Merrick Garland charges Trump as part of an ongoing grand jury investigation.
As a defamation lawsuit, the length of the exhibits does little to make up for the limited case law supporting Trump’s claim. Trump faces a difficult constitutional standard applied to public officials and public figures. Under that “actual malice standard,” he must show that CNN had actual knowledge of the falsity of a statement or showed reckless disregard of whether it was true or false.
Trump has long objected to that standard and called for it to be changed to allow greater liability for the media. Ironically, liberals such as Harvard professor Cass Sunstein also have called for the broader use of defamation to combat “fake news.” However, courts have not accepted such invitations. The standard is designed to make defamation actions more difficult, to give the free press “breathing space” to carry out its key function in our system.
CNN’s reporting in some stories that Trump lied about election fraud was clearly protected opinion. In other reports, it was based on the views of experts or sources. In either case, a defamation case cannot be maintained on the “I believed it to be true” claim. The question is whether CNN knew it to be false or didn’t care if it was false or true.
That claim, however, could have greater success in a criminal prosecution.
Some of us continue to question the basis for criminal charges against Trump on the current evidence. The House Jan. 6 committee promised to present compelling evidence to support criminal charges, but it has not yet presented that case after eight hearings. Even some Democratic figures, including former prosecutor and former Sen. Heidi Heitkamp (D-N.D.), do not believe a strong case has been made for an indictment.
I have long maintained that current or former presidents should be charged when there is clear evidence of a crime, including the cases of former Presidents Nixon and Clinton. The Justice Department, however, has long adopted a more cautious approach. Although a federal judge declared that Clinton committed perjury, which even some of his supporters admitted, he was not charged. There has been a recognition that such a prosecution — even a clear case like Clinton’s — could divide the nation at a time when it needs to move forward.
I have always disagreed with that view, believing that if a president commits a crime, prosecution strengthens the nation by showing its commitment to the rule of law.
However, that is not an invitation for improvisation or impulse. If a former president is going to sit in the dock, the case should be sufficiently strong to refute any question of political motive or influence.
That is not the current case against Trump.
While Trump was impeached for inciting an insurrection, there has been a notable shift away from that dubious basis for an indictment. Most of the current calls for prosecution focus on conspiring to defraud the United States (18 U.S.C. § 371) and corruptly obstructing an official proceeding (18 U.S.C. § 1512(c)).
Any prosecution will have to overcome significant constitutional headwinds, including free speech protections and the right to protest (and to call for such protests). However, the central problem remains Trump’s state of mind.
Trump maintains he believed the election was stolen and he had a legal basis to challenge its certification. Democrats in Congress (including some members of the Jan. 6 committee) have challenged certifications of prior elections, including Trump’s 2016 victory; past election controversies also involved rival slates of electors being presented to Congress. And Trump had a team of lawyers advising him these were valid claims.
Democrats have tried to undermine such a defense by referring to Trump’s personal lawyers as “Team Crazy” and noting that not only White House counsel but most legal experts disagreed with their analysis. They insist no one would believe these claims were credible. The committee’s case, however, was built without a modicum of balance in the presentation of evidence. Even in quoting Trump’s much-condemned rally speech, the committee routinely edited out his line that “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
Some insist Trump’s state of mind can be dismissed as “willful blindness” and that he had to know there was no evidence of widespread election fraud. It is true that willful blindness can be used by prosecutors when they cannot prove actual knowledge, but it remains highly controversial. As one expert noted, “There is tremendous confusion in this area of law and a lurking sense that something is fundamentally awry.”
When an administration prosecutes a former (and possibly future) political opponent, even more can appear “awry.” Even under the alternative showing, “willful” does not include politically delusional or defiant defendants. Millions of Americans still believe there is evidence of election fraud. Moreover, the Jan. 6 committee has portrayed Trump as a raving egomaniac who refused to accept that he could lose to President Biden. Even former Attorney General William Barr said Trump refused to entertain opposing views and added, “I thought, boy, if he really believes this stuff, he has, you know, lost contact with, become detached from reality.”
Perhaps, but Trump would not be convicted for losing a grasp on reality. He would argue that he had a host of lawyers around him supporting this view.
True, the odds of convicting Trump on most any crime before a Washington, D.C., jury is very high. In a city that gave Biden more than 92 percent of its vote (and Trump roughly 5 percent), the defense could not face a worse jury pool.
However, that does not mean it would stand up on appeal. In the interim, a weak or creative case for conviction would rip the country apart.
For the administration of his opponent to prosecute him, the case must be more than just plausible. It must be unassailable.
Prosecutors need more than simply repeating that it’s “inconceivable” that Trump didn’t know he’d lost the election. In the film “The Princess Bride,” that was the go-to line for the character Vizzini, who used it to avoid any self-questioning. For many Trump critics, it serves the same purpose.
They maintain that it is “inconceivable” that Trump believed what he said about the election being “stolen” — so what he said must have been criminal.
Yet as another character from the movie told Vizzini, “You keep using that word. I do not think it means what you think it means.”
It means even less in a criminal case against a past or present president. Garland will need more than a Vizzini charge to make a case stick against Trump.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.