Author Archives: Warren Stewart

ormer prosecutors and other experts essentially agree that proving criminal intent poses one of the biggest legal challenges to indicting former president Donald Trump for his role in the attacks on the 2020 election. Mens rea, Latin for guilty mind, is required to convict. This generally means that the offender must have acted purposely, knowingly, recklessly or negligently in committing the criminal act. It’s tempting, in assessing Trump’s state of mind, to focus on whether he genuinely believed his assertion that the presidential election was “stolen” — that he had beaten Joe Biden and that therefore his subsequent efforts were merely means well within his power aimed at setting things right. If you can prove that he did actually know he lost the election — that it was not “stolen” from him — you go a long way toward clearing that criminal-intent hurdle. Certainly, the House select committee investigating the attack on the Capitol on Jan. 6 is amassing evidence that Trump knew he had lost. Numerous Trump aides and lawyers have attested to this before the committee. But so what. For a number of the possible crimes the committee has identified, it doesn’t matter what Trump believed about the election. Focusing on that aspect misses the true test of criminal intent. He still had no legal right to use forged electoral certificates or to pressure election officials in Georgia to “find 11,780 votes” that did not exist, or to engage in other extralegal means to try to hold onto power. That includes pressuring the vice president to assume powers he didn’t have. State and federal criminal laws prohibit these things. Vigilante justice is against the law, even if you (wrongly) believe you are a victim.

J. Michael Luttig spoke softly and sometimes haltingly when he testified Thursday before the House select committee investigating the Jan. 6, 2021, attack on the Capitol. His understated presentation belied the five-alarm fire that was his written statement — a loud and clear warning to a country whose democracy, he said, is on “a knife’s edge.” Luttig was there because he had advised Vice President Mike Pence that Pence could not legally do what President Donald Trump wanted him to do, which was to interject himself in the process of ratifying the electoral count on Jan. 6 and prepare the ground to have the election overturned. But the former federal appellate court judge far more than demolished the legal arguments Trump had bought into. His prepared statement was a clear-and-present-danger document, describing the fraught state of American democracy, the war that rages internally, and the role Trump and his followers have played to bring us to this moment. Jan. 6, Luttig said, was a war within a broader war over the future of the country, “a war irresponsibly instigated by the former president and his political allies, and his supporters.” The war rages today, he added, and “as a political matter of fact, only the party that instigated this war over our democracy can bring an end to this war.”

The convening of the electoral college on Dec. 14, 2020, was supposed to mark the end of the wild, extended presidential election that year. But when the day arrived, a strange thing happened. In seven swing states won by Joe Biden, when the Democrat’s electors assembled to formally elect him president, Trump supporters showed up, too, ready to declare that their man had actually won. “The electors are already here — they’ve been checked in,” a state police officer told the group in Michigan, according to a video of the encounter, as he barred the Republicans from the Capitol in a state Biden won by more than 154,000 votes. In Nevada, a state Biden had won by about 33,600 votes, a photo distributed by the state Republican Party showed Trump supporters squeezing around an undersize picnic table dressed up with a bit of bunting, preparing to sign formal certificates declaring that they were “the duly elected and qualified” electors of their state. At the time, the gatherings seemed a slapdash, desperate attempt to mimic President Donald Trump’s refusal to concede. But internal campaign emails and memos reveal that the convening of the fake electors was apparently a much more concerted strategy, intended to give Vice President Mike Pence a reason to declare that the outcome of the election was somehow in doubt on Jan. 6, 2021, when he was to preside over the congressional counting of the electoral college votes.

Three days before Congress was slated to certify the 2020 presidential election, a little-known Justice Department official named Jeffrey Clark rushed to meet President Donald Trump in the Oval Office to discuss a last-ditch attempt to reverse the results. Clark, an environmental lawyer by trade, had outlined a plan in a letter he wanted to send to the leaders of key states Joe Biden won. It said that the Justice Department had “identified significant concerns” about the vote and that the states should consider sending “a separate slate of electors supporting Donald J. Trump” for Congress to approve. In fact, Clark’s bosses had warned there was not evidence to overturn the election and had rejected his letter days earlier. Now they learned Clark was about to meet with Trump. Acting attorney general Jeffrey Rosen tracked down his deputy, Richard Donoghue, who had been walking on the Mall in muddy jeans and an Army T-shirt. There was no time to change. They raced to the Oval Office. As Rosen and Donoghue listened, Clark told Trump that he would send the letter if the president named him attorney general. “History is calling,” Clark told the president, according to a deposition from Donoghue excerpted in a recent court filing. “This is our opportunity. We can get this done.” Donoghue urged Trump not to put Clark in charge, calling him “not competent” and warning of “mass resignations” by Justice Department officials if he became the nation’s top law enforcement official, according to Donoghue’s account.