One possibility, said Laurie L. Levenson, a criminal law professor at Loyola Law School in Los Angeles, is that prosecutors would have to prove that Mr. Trump knew for sure that Mr. Pence had no lawful basis to do what he was asking. Another possibility is that prosecutors would need to prove only that Mr. Trump had at least some reason to believe that his conduct might be unlawful and proceeded anyway, she said.
Why is proving Mr. Trump’s mind-set tricky?
Because even though senior government officials were telling him there was no factual or legal basis for Mr. Pence to unilaterally reject some states’ electoral votes or otherwise slow down the certification, Mr. Eastman told Mr. Trump that he interpreted the law as giving Mr. Pence legitimate authority to take such a step.
Julie O’Sullivan, a Georgetown University criminal law professor, said in any criminal trial, it would ultimately be up to the jury to decide what Mr. Trump truly believed. Unless evidence emerges that he told someone at the time that he knew what he was saying was false, she said, that will be a challenge.
“The problem with Trump is defining his state of mind when it is so changeable,” she said. “He believes whatever he wants to think and it doesn’t necessarily have to be grounded in reality. That’s a tough argument to a jury, to say he knew any particular thing.”
Capitol Riot’s Aftermath: Key Developments Card 1 of 3 Debating a criminal referral. The Jan. 6 House committee has grown divided over whether to make a criminal referral of former President Donald J. Trump to the Justice Department, even though it has concluded that it has enough evidence to do so. The debate centers on whether a referral would backfire by politically tainting the expanding federal investigation. Cooperating with investigators. Pat A. Cipollone and Patrick F. Philbi, two of Mr. Trump’s top White House lawyers, met with the Jan. 6 House committee, while Ali Alexander, a prominent organizer of pro-Trump events after the 2020 election, said he would assist in the federal investigation. Contempt charges. The House voted to recommend criminal contempt of Congress charges against Peter Navarro and Dan Scavino Jr., two close allies of Mr. Trump, after the pair defied subpoenas from the special committee investigating the Jan. 6 attack.
Why was that problem not an obstacle for Judge Carter?
Because the legal standard of proof is lower for deciding the crime-fraud exception applied in a subpoena dispute than it is for convicting someone of a crime.
Judge Carter concluded that Mr. Trump “likely knew that the plan to disrupt the electoral count was wrongful” using the “preponderance of the evidence” standard, under which a claim is considered established if it is more likely true than false. If the judge thought the evidence pointed to a 51 percent chance that Mr. Trump committed a crime and a 49 percent chance that he did not, that was sufficient to rule that the Jan. 6 panel could get certain emails.
What standard of proof would prosecutors face?
Prosecutors would need to persuade a jury that the same evidence proved “beyond a reasonable doubt” — a much higher standard to meet — that the former president committed a crime. Moreover, rather than persuading one judge of that proposition, prosecutors would need to convince all 12 members of a jury, because guilty verdicts must be unanimous.