Donald Trump received more than 70 million votes in the 2020 election for President of the United States, but can he get the votes he needs from inside the jury box?
That’s the question that now looms large over the GOP and the country, and most acutely over Trump, who is likely to face at least one jury if not more as the target of four separate criminal indictments.
Considering the question for Lawfare, the Yale-trained lawyer and legal journalist Roger Parloff makes a distinction between the average voter and jurists who hear specific evidence and are charged with determining — in a binary yes or no — whether crimes have been committed.
The voter acts on various triggers: emotion, historical party loyalty, a distaste for the alternative, peer group persuasion, and more. They are accustomed to puffery and bravado in political rhetoric and they don’t take hyperbolic claims too seriously, including boasts that frequently bear only a distant relation to the facts.
The jurist, on the other hand, is a different animal, as Parloff describes it. Juries are focused, tend to act responsibly, and bring their personal histories — often of being shortchanged or lied to — with them into their duties as adjudicators.
Accordingly, it won’t matter much, Parloff contends, whether or not Trump really believed the 2020 election was stolen — if there is no evidence to support the belief, as numerous court decisions have determined, then a jury will have little difficulty calling the assertion a lie. People who believe their own lies don’t get a special pass from everyday citizens, in cases like this (see: Holmes, Elizabeth). When it comes to white-collar crime especially, juries don’t easily buy the ignorance is bliss defense.
“Juries have no trouble convicting such people. When confronted with individuals who relentlessly and pervasively make false statements, jurors usually conclude that they are liars. Jurors get lying. They’ve met liars in their lives. They’ve been burned by them. They don’t like them.”Roger Parloff, Yale-trained lawyer
Agreeing with Parloff, but phrasing it as SNL-style satire, former Senator Al Franken says: “All Trump has to do is a convince a jury that he believed he won: IE, he believed that 61 judges, his campaign team, his DOJ, the WH counsel, and every other credible advisor was wrong…”
All Trump has to do is a convince a jury that he believed he won: IE, he believed that 61 judges, his campaign team, his DOJ, the WH counsel, and every other credible advisor was wrong, and instead believed Sydney Powell was right. And that he should be President.…— Al Franken (@alfranken) August 18, 2023
But what Trump believed may not matter to a jury technically either. In the cases brought against Trump, as Special Counsel Jack Smith has emphasized, the evidence addresses what Trump did — his “conduct” — not what he thought as he did it. What Trump believed at the time he took his allegedly illegal actions isn’t something that prosecutors therefore need to prove.
One commenter, addressing this point, writes: “It doesn’t matter what he believed, he’s being charged for the things he DID. I can genuinely believe that a bank owes me money but if I break the law by trying to break into the bank then I’m still guilty no matter what I thought was true.”