Jack Smith wants to know what Trump thought after 2020

Former President Donald Trump is a paradox. Here we have a man who sometimes seems unable to keep his mouth shut, even when it’s in his own best interests. At the same time, he has made ambiguity one of his hallmarks, constantly straying from previous positions and refusing to spell commands when innuendo is enough.

Squaring that circle will be one of Special Counsel Jack Smith’s toughest tasks if he indicts Trump for trying to reverse the results of the 2020 presidential election. On the one hand, it’s clear that Trump is committed to staying in the White House no matter what. But figuring out exactly what was going through his mind in the weeks and months after the election, leading up to the Jan. 6 attack on the Capitol, has been a daunting task, even after multiple investigations and countless interviews with witnesses.

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 known that the claims that he won the election were false? The House committee investigation on January 6 and other subsequent reports made this answer quite clear. From members of his own team to reports prepared by outside personnel, there is plenty of evidence that Trump was told on countless occasions that the stolen election narrative he was spreading was entirely fictitious.

The second question, however, is much more difficult, especially given the charges: even if he should have known otherwise, did Trump himself really believe the election was stolen or was he deliberately lying to his base? The answer could affect many aspects of the sprawling and shifting network of schemes being investigated, from the millions of dollars that were solicited based on lies about mass voter fraud to the fake voter conspiracy, whereby Trump’s team sought to use fraudulent Electoral College votes to cast doubt on the election outcome.

When it comes to the investigation of the classified Mar-a-Lago documents, Trump has made things much easier for Smith regarding his intent. While the former president has repeatedly and publicly insisted that the seized documents belong to him or that he had declassified them before leaving office, there is no ambiguity that he was not supposed to have them in his possession. And even though the former president’s lawyers had advised him to fully comply with the Justice Department’s subpoena, according to Smith’s indictment, Trump still suggested that they might just be lying to the National Archives to find out if all the documents had been turned over.

On the side of the 2020 election, Trump’s mindset is much harder to fathom. His son-in-law Jared Kushner allegedly testified before a federal grand jury that he felt Mr. Trump truly believed the election was stolen, The New York Times reported earlier this month. And unlike the Mar-a-Lago case, where a very small minority of councilors told him to fight, a much larger group insisted that the election had been stolen. This includes a group of lawyers who should have known better, including Sidney Powell and Rudy Giuliani. Whether Trump specifically ordered them to take action to void the election or passively accepted their advice would have become a key part of Smiths’ investigation.

Meanwhile, text messages from then-White House chief of staff Mark Meadows help illustrate just how murky the information environment around Trump was at the time. Meadows was often the starting point for several of the avenues considered to nullify the election, including pressuring the Justice Department 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 Trump advisers who were skeptical of the fraud allegations, as The Washington Post reported, and joked with a White House attorney about the ridiculousness of some of the conspiracies.

The charges Smith brings will reflect how well he can pinpoint Trump’s mindset.

As I noted earlier, however, there were numerous instances where Trump was told directly that there was no evidence of fraud, including several outside reports commissioned by his own campaign. 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 before the Jan. 6 committee that Trump told Meadows in December 2020, I don’t want people to know we lost.

The charges Smith brings will reflect how well he can pinpoint Trump’s mindset. Legal experts at Just Security recently drafted a model charging memorandum that spells out several potential laws that Trump could be accused of violating. In their analysis, they acknowledged Trump’s unavoidable defense of lack of criminal intent, but determined that it is unlikely to prevail given the overwhelming evidence that Trump was repeatedly told the election was not fraudulent. Additionally, they selected a set of charges including conspiracy to defraud the United States in the administration of an election and obstructing official proceedings that would not require convincing a jury that Trump knew he was lying while maintaining a desire to tamper with several aspects of his autogolpe attempt.

The ongoing attempt to analyze exactly what’s going through Trump’s mind never fails to remind me of one of the best tweets of all time, courtesy of former first lady Melania Trump. It features a photo of a beluga whale emerging from the waterline, with the extremely serious caption of Melanias: What is she thinking?

Science has not advanced to the point where we can answer his question and find out what is behind the anthropomorphized smile of cetaceans, although we can make observations about its behavior and draw certain conclusions. The same can be said for Melania Trump’s husband. Even under an onslaught of investigations, it remains both entirely knowable and impenetrable. We may never determine exactly what Trump believed as he led a crowd of his supporters to the Capitol. Luckily, it might not matter in the end considering how powerfully his actions speak for themselves.

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