Georgia Trump Indictment Fails to Support Criminal Intent Allegations
News Analysis
The indictment of former President Donald Trump in Georgia over his efforts to reverse the results of the 2020 election lacks evidence that he harbored the criminal intent necessary to be convicted.
Fulton County District Attorney Fani Willis laid her case out on Aug. 14, detailing how President Trump and his alleged co-conspirators claimed fraud in the 2020 election in Georgia and elsewhere, how they arranged for an alternative slate of electors in Georgia and several other states, and how they tried to use this strategy to delay the counting of electoral votes by the vice president on Jan. 6, 2021.
Ms. Willis alleged that 41 crimes were committed by various persons in this effort. Of those, 11 list President Trump as the defendant and most of those require various forms of criminal state of mind—the perpetrator needs to be aware he’s doing something unlawful.
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Despite its nearly 100 pages, the indictment fails to explain how Ms. Willis knows President Trump acted with criminal intent, rather than executing a strategy he believed was lawful.
The indictment centers on the overarching allegation that President Trump’s effort to reverse the election results amounted to a racketeering conspiracy.
President Trump and his aides claimed the election was marred by irregularities and fraud and lobbied Georgia lawmakers to appoint an alternative slate of electors that would cast their votes for President Trump. This effort, Ms. Willis alleges, violated the state’s law against solicitation of a felony—namely, convincing the lawmakers to break their oath of office.
The Georgia Oath of Office states: “I do hereby solemnly swear or affirm that I will support the Constitution of this state and of the United States and, on all questions and measures which may come before me, I will so conduct myself, as will, in my judgment, be most conducive to the interests and prosperity of this state.”
The indictment doesn’t explain what specific part of the oath the lawmakers were asked to break.
More fundamentally, however, violating the oath is only criminal when done “willfully,” meaning with criminal intent. Ms. Willis didn’t explain how she knows the people involved thought they were committing a crime, rather than pursuing a legal avenue to challenge the election result.
Setting up an alternative elector slate bears a legal precedent in the 1960 Hawaii election, where John F. Kennedy challenged the result in court with a recount pending even as Richard Nixon was certified the winner. Under such circumstances, Democrat electors convened to cast their votes for Mr. Kennedy and signed certification to that effect. As Mr. Kennedy succeeded with his challenge, it was only thanks to the existence of the alternative elector slate that the state’s votes were counted.
Ms. Willis charged some of the GOP electors with impersonating a public officer by declaring themselves in writing to be legitimate electors. But that crime also requires criminal intent—an intent to mislead. Willis didn’t explain how she knew this was their intention. The state’s Republican Party has stated that it was made clear by the electors that they were casting votes that would only be counted if President Trump succeeded in contesting the election in court.
Ms. Willis also charged the alternative elector certificate creation as a forgery. This crime also requires a criminal state of mind—an intent to defraud. Again, Ms. Willis didn’t explain how she knew this was indeed their intent.
The indictment also accuses President Trump and others of making various false statements regarding the election results. Regardless of the accuracy of the claims, however, the law again requires willfulness. Ms. Willis didn’t clarify in the indictment how she knew President Trump didn’t believe what he was saying.
Shortly after Ms. Willis unveiled her indictment, President Trump announced a press conference during which he intends to present a “conclusive” report on what he believed constituted election fraud in Georgia.
The shortage of evidence of the state of mind required for conviction has emerged as an issue with the charges brought against President Trump by special counsel Jack Smith—also for the effort to reverse the 2020 election result.
Mr. Smith proposed a trial in the case to start with jury selection on Dec. 11, giving the defense some three months to go over more than 11 million pages and files of discover
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