Former President Donald Trump is a paradox. Here we have a man who at times seems unable to keep his mouth shut, even when it’s in his own best interest. At the same time, he has made ambiguity one of his defining features, constantly retreating from previous positions and refusing to spell out orders when innuendoes suffice.
Squaring that circle will be one of special counsel Jack Smith’s hardest tasks should he indict Trump for trying to reverse the results of the 2020 presidential election. On the one hand, it’s obvious that Trump was committed to staying in the White House no matter what. But working out exactly what was going through his head in the weeks and months after the election, leading up to the Jan. 6 attack on the Capitol, has been a heavy lift even after multiple investigations and countless witness interviews.
Even though he should have known otherwise, did Trump himself truly believe the election was stolen or was he deliberately lying to his base?
There are two main questions that it seems Smith and his team are trying to answer. First: Should Trump have been aware that the claims he won the election were false? The House Jan. 6 Committee investigation and other subsequent reporting has made that answer pretty clear. From members of his own team to reports prepared by outside staff, there is plenty of evidence to show that Trump was told many, many times that the “stolen election” narrative he was spreading was entirely fictitious.
The second question is much more difficult, though, especially depending on the charges: Even though he should have known otherwise, did Trump himself truly believe the election was stolen or was he deliberately lying to his base? The answer could affect many aspects of the sprawling, shifting web of schemes that are under investigation, from the millions of dollars that were solicited based on falsehoods about mass election fraud to the “fake electors” plot, by which Trump’s team sought to use fraudulent Electoral College votes to cast doubt on the election’s outcome.
When it comes to the Mar-a-Lago classified documents probe, Trump made things much easier for Smith as far as his intent goes. While the former president has repeatedly and publicly insisted that the materials seized were his to keep, or that he declassified them before leaving office, there’s no ambiguity about the fact that he wasn’t supposed to have them in his possession. And even though the former president’s lawyers had advised him to comply fully with the Justice Department’s subpoena, according to Smith’s indictment Trump still suggested that maybe they just lie to the National Archives about whether all the documents had been handed in.
On the 2020 election side of things, Trump’s mindset is much harder to work out. His son-in-law Jared Kushner reportedly testified to a federal grand jury that “it was his impression that Mr. Trump truly believed the election was stolen,” The New York Times reported earlier this month. And unlike in the Mar-a-Lago case, where a very small minority of advisers was telling him to fight, a much larger group insisted to him that the election was stolen. That includes a cadre of lawyers who should have known better, including Sidney Powell and Rudy Giuliani. Whether Trump specifically directed them to take steps to overturn the election or passively accepted their advice has reportedly become a key focus of Smith’s investigation.
Meanwhile, text messages from then-White House chief of staff Mark Meadows help illustrate how murky the information environment around Trump was at the time. Meadows was often running point on several of the avenues under consideration for overturning the election, including pressuring the Department of Justice to provide evidence of fraud and coordinating with his former House colleagues in the Freedom Caucus. But at the same time, he was “privately sympathetic to those Trump advisers who were skeptical of the fraud claims,” as The Washington Post put it, and joked with a White House lawyer about how ridiculous some of the conspiracies were.
The charges Smith brings will reflect how much he can pin down Trump’s mindset.
As I noted earlier, though, there were multiple examples of Trump being told directly that there was no evidence of fraud, including several outside reports that his own campaign commissioned. There are fewer examples of Trump outright confirming — or even suggesting — that he lost the election, but they do exist. For example, former White House staffer Cassidy Hutchinson testified to the Jan. 6 Committee that Trump had told Meadows in December of 2020, “I don’t want people to know that we lost.”
The charges Smith brings will reflect how much he can pin down Trump’s mindset. Legal experts at Just Security recently pulled together a model prosecution memo that lays out several potential laws Trump could be charged with violating. In their analysis, they acknowledged “Trump’s inevitable defense of lack of criminal intent” but determined that it “is unlikely to prevail given the overwhelming evidence that Trump was repeatedly informed the election was not fraudulent.” Further, they selected a set of charges — including conspiracy to defraud the U.S. in administering an election and obstructing an official proceeding — that wouldn’t require convincing a jury that Trump knew he was lying while still maintaining the desire to hit on multiple aspects of his attempted autogolpe.
The ongoing attempt to parse out exactly what’s running through Trump’s mind never fails to remind me of one of the best tweets ever, courtesy of former first lady Melania Trump. In it, we see a picture of a beluga whale emerging from the water line, with Melania’s exceedingly earnest caption: “What is she thinking?”
Science has not advanced to the point where we can answer her question and know what’s behind the cetacean’s anthropomorphized smile, even as we can make observations about its behavior and draw certain conclusions. The same can be said about Melania Trump’s husband. Even under an onslaught of investigations, he remains both entirely knowable and inscrutable. We may never determine exactly what Trump believed as he directed a mob of his followers toward the Capitol. Thankfully, it may not matter in the end given how loudly his actions speak for themselves.