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Dear Reader,

Forgive me for the epistemological opening. (Yeah, ok, I had to Google “word meaning how do we know what we know?”) But this philosophical question has taken on practical significance with the unfolding January 6 Committee hearings, a central theme of which has been: he knew. More precisely, the Committee has set out to prove that Donald Trump knew that he had lost the election. He knew that there was no evidence of widespread election fraud. He knew that the “legal” theory that the vice president could unilaterally reject certain electoral votes was bunk. And, perhaps, he knew that his words and actions could result in violence.

Of course, Trump’s knowledge matters for the historical record and for those assessing his likely candidacy for the presidency in 2024. The more he knew, the more inexcusable his conduct, the less fit he is to lead the nation again. 

And Trump’s knowledge is central to an assessment of his potential criminal liability. Prosecutors must, of course, prove any defendant’s intent, beyond a reasonable doubt. While intent requirements vary across the statute book, the primary charges that prosecutors might bring against Trump – conspiracy to defraud the United States of a fair election, or attempted obstruction of an official proceeding – call for proof that Trump knew he was acting illegally or corruptly. 

This raises the dicey question that opened this article: what does it mean to know? The Committee has argued that Trump had to know because so many of his own people told him so. For example, according to the Committee, Trump knew he lost the election and there was no significant evidence of voter fraud because so many credible sources and insiders confirmed it: his own attorney general, dozens of state and federal judges, many of his top White House aides and campaign advisors. Same with the legal theory that the vice president could chuck the votes of seven states, bang a gavel, and declare Trump the once and future president. Virtually every sentient being who practices law – including his own White House lawyers, Mike Pence’s attorneys, and respected conservative judges and scholars – declared publicly or told Trump that the concept was dead-on-arrival, and would lead to chaos in our government and potentially on the streets. 

But then, what if the person whose knowledge we want to ascertain is stubbornly delusional? What if he doesn’t want to hear or accept the truth, obvious as it might be? What if he carefully selects his inputs to confirm only what he wants to hear, and shuts out the bearers of bad news? Does he really know? 

I can already hear the collective response, which I largely share: Oh, come on! (Not to get overly legalistic with the jargon.) Let’s be realistic here. One one side we’ve got what former Trump campaign manager Bill Stepien dubbed “Team Normal”: Stepien, other campaign staff and analytics gurus, Trump’s own White House lawyers and advisors, Bill Barr, even Ivanka Trump. (Let’s put aside for the moment that some of these folks, including Barr and Stepien, had helped Trump spread the lie of voter fraud before the election.) 

On the other side, we’ve got, well… Rudy (an apparently inebriated Rudy, no less). And Sidney Powell. And John Eastman, Ginni Thomas, and the Pillow Guy. 

I’m guessing most of us would side with Team Normal. But here’s the thing: Donald Trump isn’t most of us, nor must he be. We can roll our eyes, sure. But couldn’t Trump argue this: “Look, I was getting competing advice. Sure, more people told me I had lost – but others told me I had won. And I’m entitled to choose to believe a former federal prosecutor (Rudy) and a former Supreme Court clerk and constitutional law professor (Eastman). Maybe you wouldn’t agree, and that’s fine; you take advice from your people and I’ll take advice from mine. These are the people who I trusted.” It’s the Edie Brickell defense: “I’m not aware of too many things; I know what I know, if you know what I mean.”

So now what? How can we ever prove that anyone knew anything, ever? Is this game over for any potential prosecution that relies on proof of the defendant’s knowledge? Does Trump render himself immune by his own stubborn insistence on hearing only what he wants to hear? 

The short answer is no. The law accounts for the uncertainty of subjectivity with a concept called “willful blindness.” That means that, if a defendant buries his head in the sand to avoid learning the truth, we can hold him legally liable, just the same as if he knew. It’s not enough for prosecutors to show that the defendant made a mistake or an error in judgment in deciding what to believe; prosecutors must show that the defendant intentionally took steps to avoid learning the painful truth.

The Committee’s evidence against Trump looks like a textbook case of willful blindness. Trump shut out and rejected the many voices telling him he had lost, and gave credence only to those who were delusional or sycophantic enough to feed him the fiction that he won. He chose who to believe based entirely on his desired end result. To apply the example that judges sometimes give on willful blindness: Trump was the ostrich, while Rudy, Eastman, and company were the sand in which he buried his head.

Prosecutors will tell you that intent is often the most difficult element of any criminal case. As judges instruct juries, science has not yet come up with a way to read people’s minds, so we often have to infer intent based on the evidence. It’s a difficult task, but it’s not impossible; prosecutors do it in every fraud case, somehow. 

So, no, prosecutors might never be able to prove conclusively what exactly was happening inside Donald Trump’s head. But it’s enough under the law if they can prove that he intentionally avoided the obvious truth.

Stay Informed, 

Elie