Only one obstacle remains to the indictment and conviction of Donald Trump: the argument that no matter how strong the federal prosecutor’s case might be, Trump will get away with it on the grounds that he believed that there was widespread election fraud and was also convinced, based on the advice of his lawyer, that he had the authority to overturn the election. This argument, though repeated by commentators, think tanks, and former prosecutors, is nonsense.
Trump’s state of mind with respect to whether there was election fraud is irrelevant to the crimes for which he would be indicted. Those charges arise from: the pressure Trump brought on state officials to violate their statutory duties with respect to counting votes, Trump’s attempt to force the vice president to block the process of ratifying the election, and Trump’s participation in a conspiracy to attack the Capitol.
What people sometimes forget is that Trump’s beliefs regarding election fraud are immaterial to these charges: a person’s view of the facts surrounding a crime is only a defense if that view would have caused the individual to believe that their actions were legal. I may, for example, be convinced that a bank improperly removed $500 from my account. That belief, however, is no defense to my decision to organize a group of friends to break into the bank and steal the money back.
Similarly, nothing Trump believed regarding election fraud could have justified the thought that he was entitled to encourage an attack on the Capitol or coerce state officials and the vice president to violate their legal obligations.
As to the defense that Trump had been advised by his attorney John Eastman that the president’s authority included the right to interfere with the electoral process, this too is ridiculous.
While reliance on counsel and mistake of law are defenses to certain crimes, such reliance or mistake must be “reasonable.” What this means is that it is not Trump’s subjective state of mind that is decisive but rather what a jury would consider to be the mental state of a reasonable person under similar circumstances.
I may, for example, be convinced that a bank improperly removed $500 from my account. That belief, however, is no defense to my decision to organize a group of friends to break into the bank and steal the money back.
This objective standard has been central to civil and criminal law since antiquity. Derived from Roman law, the standard was not only objective but high: the diligens paterfamilias—the care which would have been taken by a good or diligent head of a family. It was the same standard which was applied, by analogy, to the behavior of Roman statesmen. Adopted into the common law of England, the test was reflected in Chief Justice Holt’s ruling in Coggs v. Bernard (1703) that a defendant was to be held to the standard of belief consistent with the “most diligent father of a family.”
By the 19th century, this elevated, objective standard was incorporated into the laws of the United States, expressed as the “reasonable person” test. The test was justified on the grounds that human beings, as noted by Locke, had the “facility of reason” and it was this attribute which separated men from animals and lunatics.
As to the impeachable offenses of “treason, bribery, or other high crimes and misdemeanors”—offenses similar to those with which Trump would be charged—the legal scholar Charles Black Jr. observed that the “belief in the lawfulness or rightness of an action, in order to be a defense, must be such belief as a reasonable person could hold.”
The alternative to the reasonable-person standard—allowing criminal liability to turn wholly on the subjective mental state of the defendant— would permit defendants, such as Trump, to escape punishment by simply misrepresenting their state of mind at the time of the offense. This same rationale explains why the legal test for proving insanity has traditionally been so difficult to satisfy.
From the evidence of what Trump was told by Vice President Pence, Pence’s legal staff, and members of the Justice Department, there would be little or no basis for a jury to conclude that Trump had a reasonable belief that he was authorized to overturn the election.
Greg Jacob, chief counsel to the vice president, testified before the House Select Committee on the January 6 Attack that in a meeting with Trump and Eastman on January 4, Jacob informed Trump that “Mr. Eastman’s proposals would violate several provisions of the Electoral Count Act” and that at that same meeting “Mr. Eastman acknowledged that that was the case.” Two days later, Jacob followed up with an e-mail to Eastman asking him whether he had advised “the President that in your professional judgment, the Vice President does not have the power to decide things unilaterally?” Eastman responded: “He’s been so advised.”
Lastly, the advice-of-counsel defense is not valid when the attorney upon whom the defendant relies was a co-conspirator. The evidence suggests that were Trump to be tried for criminal conspiracy to interfere with the presidential election, Eastman would be named as a co-conspirator.
That trial might well begin with the prosecutor asking the jury whether Trump acted as the diligent father of the American family or whether, as Cicero observed of the magistrate Gaius Verres, he followed his “own depraved and disgraceful behavior” rather than “the ways of our forefathers and the traditions of our national life.”
Michael Rips is a New York City–based attorney and writer. His latest book is Objection! The People vs. Amy Coney Barrett