Skip to content Skip to footer

Trump Saying He Believed Lies About Voter Fraud Is No Defense, Legal Experts Say

Even if Trump actually believed the false claims, his worries do not justify his actions, two legal experts say.

Then-president Donald Trump speaks in the Oval Office on September 17, 2020, in Washington, D.C.

Former President Donald Trump cannot win an acquittal from any potential indictment related to the attack on the Capitol by arguing that he genuinely believed his false claims of election fraud, two highly regarded legal experts said.

Laurence Tribe, professor emeritus at Harvard Law School, and Dennis Aftergut, a former federal prosecutor and current counsel to the advocacy group Lawyers Defending American Democracy, made the argument in a joint op-ed for The Hill, published on Thursday evening. The two experts said that a claim of sincere belief in errant claims of 2020 election fraud cannot be recognized as a reasonable defense, should Trump face prosecution for his actions in the days leading up to and on January 6, 2021, when a mob of his loyalists attacked Congress during its certification of the Electoral College results.

Trump could face prosecution from the Department of Justice (DOJ). According to statements made by Attorney General Merrick Garland, the DOJ is carefully watching the January 6 public hearings, and could make a prosecutorial decision based on the evidence the panel puts forward.

If the DOJ decides to charge Trump with a crime, the former president might argue that he genuinely believed his own election fraud claims, and that his attempts to overturn the election were therefore justified. Tribe and Aftergut say such an argument isn’t legally plausible.

The idea that “Trump lacked the ‘criminal intent’ necessary for conviction because he didn’t think he was doing anything wrong” is “incorrect,” the two legal minds wrote in their piece, because the law “distinguishes between refusing to accept inconvenient truth to get your way and mental disturbance sufficient to excuse illegality, between adopting strategic blindness and not knowing your facts from a hole in the ground.”

Trump frequently heard from his aides — both on the campaign and within his administration — that his fraud claims were inaccurate. Former attorney general William Barr described them under oath to the January 6 committee as “bullshit.” The former president decided to ignore the advice of his aides and pursued actions that many say were illegal.

Whether Trump was a true believer in those claims, however, is irrelevant, Tribe and Aftergut said. The former president’s actions aren’t justified by his beliefs because there’s a process to address those complaints that don’t require illegal activities.

Trump and his allies pursued the legal route, asking dozens of courts to allow him more time to prove fraud occurred. In each of those instances, the courts found that his claims were baseless.

“An elected official doesn’t get to strong-arm others to have them violate the law, even if he genuinely believes that pervasive voter fraud turned an election,” the duo wrote. Losses in court cases didn’t give Trump the right to say “I’m going to stay in power anyway,” they added.

While Garland considers whether to take legal action against Trump or anyone else who conspired to overturn the election, most Americans recognize that Trump, at the very least, was responsible for the violence of January 6. A recent Politico/Morning Consult poll found that 57 percent of Americans believe Trump bears some or a lot of responsibility for that day’s violence, while only 35 percent say he doesn’t. When asked if elected officials in general should face prosecution from the DOJ if they attempted to overturn an election, 67 percent said they should.

Help us Prepare for Trump’s Day One

Trump is busy getting ready for Day One of his presidency – but so is Truthout.

Trump has made it no secret that he is planning a demolition-style attack on both specific communities and democracy as a whole, beginning on his first day in office. With over 25 executive orders and directives queued up for January 20, he’s promised to “launch the largest deportation program in American history,” roll back anti-discrimination protections for transgender students, and implement a “drill, drill, drill” approach to ramp up oil and gas extraction.

Organizations like Truthout are also being threatened by legislation like HR 9495, the “nonprofit killer bill” that would allow the Treasury Secretary to declare any nonprofit a “terrorist-supporting organization” and strip its tax-exempt status without due process. Progressive media like Truthout that has courageously focused on reporting on Israel’s genocide in Gaza are in the bill’s crosshairs.

As journalists, we have a responsibility to look at hard realities and communicate them to you. We hope that you, like us, can use this information to prepare for what’s to come.

And if you feel uncertain about what to do in the face of a second Trump administration, we invite you to be an indispensable part of Truthout’s preparations.

In addition to covering the widespread onslaught of draconian policy, we’re shoring up our resources for what might come next for progressive media: bad-faith lawsuits from far-right ghouls, legislation that seeks to strip us of our ability to receive tax-deductible donations, and further throttling of our reach on social media platforms owned by Trump’s sycophants.

We’re preparing right now for Trump’s Day One: building a brave coalition of movement media; reaching out to the activists, academics, and thinkers we trust to shine a light on the inner workings of authoritarianism; and planning to use journalism as a tool to equip movements to protect the people, lands, and principles most vulnerable to Trump’s destruction.

We urgently need your help to prepare. As you know, our December fundraiser is our most important of the year and will determine the scale of work we’ll be able to do in 2025. We’ve set two goals: to raise $81,000 in one-time donations and to add 1250 new monthly donors by midnight on December 31.

Today, we’re asking all of our readers to start a monthly donation or make a one-time donation – as a commitment to stand with us on day one of Trump’s presidency, and every day after that, as we produce journalism that combats authoritarianism, censorship, injustice, and misinformation. You’re an essential part of our future – please join the movement by making a tax-deductible donation today.

If you have the means to make a substantial gift, please dig deep during this critical time!

With gratitude and resolve,

Maya, Negin, Saima, and Ziggy