Why Trump's 'guilty mind' could make or break his prosecution
The sharpest opinions on the debate from around the web


As the Jan. 6 committee continues to build its case against former President Donald Trump, one of the key issues for a possible prosecution is whether Trump and his legal advisor John Eastman actually knew he had lost the election — or if he really believed, wrongly, that he had won. The legal Latin for this is mens rea, or "guilty mind"
"Most or all the crimes that Eastman and other Trump advisors could be charged with would require proving a guilty state of mind," says Stanford Law School Professor David Sklansky. "This might require showing, beyond a reasonable doubt, that they knew that Biden's electoral victory was legitimate and not the result of voter fraud — or at least that they knew they were obstructing a legitimate government proceeding." And it can be difficult to make that kind of case against Trump, "who may have convinced himself of whatever it was convenient for him to believe." Can the Jan. 6 committee prove Trump had a guilty mind? And should it matter?
Bill Barr may have given Trump his "get out of jail free" card
During his testimony before the committee, Trump's former attorney general described him as "detached from reality" regarding his election loss. "Ironically, that seemingly damning assessment of Trump's state of mind might be his best defense against a possible criminal prosecution," Renato Mariotti writes for Politico. While Trump "seemed uninterested in facts" of his loss and "clung to implausible conspiracy theories," there's still a big challenge for a potential prosecution: "At the core of any fraud prosecution is proving the defendant's dishonesty and intent to defraud beyond a reasonable doubt." And that's going to be difficult to prove. In private, "Trump passionately pushed his fraud claims on anyone who would listen, and he is still pushing the claims now." That means the Department of Justice is going to be extremely cautious about charging the former president. "They charge defendants when they know they have the goods, and based on what we've seen so far, they don't have an airtight case against Trump."
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
Not every crime requires proof of mens rea
"For a number of the possible crimes the committee has identified, it doesn't matter what Trump believed about the election," Ryan Goodman, Norman Eisen and Barbara McQuade write in The Washington Post. He had no right "to engage in other extralegal means to try to hold onto power," including pressing Georgia officials to find extra votes, leaning on Vice President Mike Pence to violate the Electoral Count Act to send the election back to the states, or asking Arizona House Speaker Rusty Bowers to substitute Trump's electors for Biden's. You don't have to prove that Trump really, truly believed he'd won the election when the evidence shows that "Trump and a cadre of his closest associates conspired to engage in electoral vigilantism," the trio write. "Whether one truly believed their preferred candidate won the election or that the official verdict was flawed is simply no defense." And that means prosecutors have a clear pathway to charging Trump. "If they focus on Trump's efforts to engage in vigilante justice, the intent element of these crimes is easily satisfied."
If Trump didn't want to know the truth, that's a strike against him
If they can't prove that Trump knew he lost the election, prosecutors "could rely on a well-established legal doctrine well-suited for this situation: 'willful blindness' or 'conscious avoidance,'" Daniel Richman writes for Lawfare. This isn't just a "should have known" situation — prosecutors would have to make the case that "the defendant subjectively believed that there was a high probability that the relevant fact was true and that the defendant took deliberate actions to avoid learning that fact." That's still pretty difficult to prove, however: "Delusional pigheadedness is indeed a defense." Criminal trials "regularly require trips through a defendant's head," and that means the best-case scenario is still challenging for would-be prosecutors — particularly with a defendant as famously disdainful of the truth as Trump. "No one should underestimate the difficulty of a trip into the head of someone who has had a troubled relationship with expertise, precedent, and reality."
Even if he didn't have a guilty mind, he's still guilty
"Here's a thought experiment. Imagine applying mens rea to the bloodiest tyrants of modern history," Timothy Noah writes for The New Republic. Hitler, Stalin and Mao were all apparently true believers in their murderous causes, but it wouldn't be hard for a smart lawyer to make the case they "suffered from severe mental illness that prevented them from feeling guilt about their butchery." That shouldn't matter. Trump isn't a mass-murder like those men, but that doesn't change a singular truth: Believing one's own BS doesn't end one's culpability for crimes. His self-delusion is no reason not to put him on trial. "Trump is not impaired," writes Noah. "He's just a rich a--hole who believes what he wants because he can."
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
Joel Mathis is a writer with 30 years of newspaper and online journalism experience. His work also regularly appears in National Geographic and The Kansas City Star. His awards include best online commentary at the Online News Association and (twice) at the City and Regional Magazine Association.
-
Trump’s budget bill will increase the deficit. Does it matter?
Today's Big Question Analysts worry a 'tipping point' is coming
-
Film reviews: The Phoenician Scheme, Bring Her Back, and Jane Austen Wrecked My Life
Feature A despised mogul seeks a fresh triumph, orphaned siblings land with a nightmare foster mother, and a Jane fan finds herself in a love triangle
-
Music reviews: Tune-Yards and PinkPantheress
Feature "Better Dreaming" and "Fancy That"
-
Elon Musk slams Trump's 'pork-filled' signature bill
speed read 'Shame on those who voted for it: you know you did wrong,' Musk posted on X
-
'We need solutions that prioritize both safety and sustainability'
Instant Opinion Opinion, comment and editorials of the day
-
A running list of all the celebrities Trump has pardoned
IN DEPTH Reality stars, rappers and disgraced politicians have received some of the high-profile pardons doled out by the president
-
'The pattern is similar across America'
Instant Opinion Opinion, comment and editorials of the day
-
Judge blocks push to bar Harvard foreign students
speed read Judge Allison Burroughs sided with Harvard against the Trump administration's attempt to block the admittance of international students
-
Trump's trade war whipsawed by court rulings
Speed Read A series of court rulings over Trump's tariffs renders the future of US trade policy uncertain
-
What's next for Elon Musk?
Today's Big Question The world's richest man has become 'disillusioned' with politics – but returning to his tech empire presents its own challenges
-
Trump's super-charged pardon push raises eyebrows and concerns
IN THE SPOTLIGHT Never shy about using his pardon ability for political leverage, Trump's spate of amnesty announcements suggests the White House is taking things to a new level