How ‘willful blindness’ could loom over Trump’s legal jeopardy

This question makes Trump’s opponents angry; they feel it lets him off the hook for lying. I’m on record as arguing that the latter isn’t any better, at least politically and governmentally speaking. What would it say about a man — a president! — if he was incapable of parsing even such basic facts? At least a liar would have a grasp of reality when they choose to depart from it.

But while this question has been somewhat academic for a long time, it now bears significantly on Trump’s legal situation. The Jan. 6 committee in its hearings has zeroed in on proving that Trump committed a crime in trying to overturn the election because he acted corruptly — specifically, that he knew better.

To do so, they’ve emphasized that he was told that many of his big voter-fraud claims were false and that the people spearheading his plot knew it was illegal. While ignorance often isn’t a valid legal defense, it could be when it comes to the law the Jan. 6 committee has spotlighted: obstruction of an official proceeding. That’s because the statute requires acting “corruptly.”

That said, there is another option on the table when it comes to proving corrupt intent — if not for the Jan. 6 committee, then for federal prosecutors who could bring a case against Trump. And it’s one that a couple of witnesses last week drove home: Even if you can’t prove Trump knew better, he did appear willfully blind to the facts.

As recently as 2011, the Supreme Court has reiterated that people who choose to remain willfully blind “are just as culpable as those who have actual knowledge.”

“Willful blindness is a more general concept that is used to establish that somebody knew something that they are pretending they didn’t know,” former federal prosecutor Barbara McQuade said. “A jury would be instructed that a person cannot ignore a high probability that a fact is true simply by turning a blind eye to it.”

At the June 14 hearing, the committee played key testimony from former attorney general William P. Barr and former deputy attorney general Richard Donoghue. Both, importantly, detailed a number of instances in which they personally told Trump that his fraud claims were bogus — in broad strokes and concerning multiple specific claims. The thrust of their testimony was clear: Trump must have known better, because he was told the facts by extremely smart lawyers who worked for him. There is also evidence that Trump’s lawyers knew the Jan. 6 plot to have Vice President Mike Pence overturn the election was illegal, because they themselves admitted it — and would conceivably have shared that information with Trump.

But proving that Trump internalized this advice and agreed with it is more difficult. Trump showed true devotion to the “big lie,” and it remains to be seen whether the committee can prove he knew better. What if he was given conflicting advice from the likes of Rudy Giuliani and Sidney Powell, for instance, and believed them? (Former White House aide Alyssa Farah Griffin has said that Trump at one point conceded he lost to Joe Biden, but the context of this concession is not clear.)

Both Barr and Donoghue seemed to nod to the idea that Trump had been willfully blind.

Donoghue testified that he ran through a litany of fraud claims with Trump, detailing why they were false, but that “when you gave him a very direct answer on one of them, he wouldn’t fight us on it, but he would move to another allegation.”

Barr lamented that he grew disillusioned with Trump because he couldn’t understand how the former president would believe this stuff. He said that “when I went into this and would, you know, tell them how crazy some of these allegations were, there was never an indication of interest in what the actual facts were.”

Such comments could be used to argue in court that Trump chose to remain willfully blind — that the truth was right there for him to understand, but he didn’t care about the details of his fraud claims being debunked.

Could prosecutors prove willful blindness? Columbia University law school professor Daniel Richman delved into that question Tuesday, over at Lawfare:

This substitute for actual knowledge should never be confused with a “should have known” standard (an objective inquiry that looks to what a reasonable person should have known under the circumstances). To prove “willful blindness,” the prosecution must show that the defendant subjectively believed that there was a high probability that the relevant fact was true and that the defendant took deliberate actions to avoid learning that fact. A trip through the defendant’ mind still cannot be avoided. But the goal post has been moved a bit, with active rejection filling up the difference between “subjective belief in a high probability” and actual knowledge.

…

Moving the goalpost closer to satisfying the government’s mens rea burden still leaves a distance to travel. One would need to find both that Trump was presented with credible expert opinion as to the lack of fraud and that such advice in fact gave him subjective belief in the high probability of that fact. The latter inference is possible but hardly compelled. One’s ability to make that inference is not necessarily prevented by the fact that Trump was advised by others, like his lawyers Rudy Giuliani and Sidney Powell, that fraud had occurred. A reasonable juror might well think the level of expertise and empirical support those advisers offered was minimal and swamped by the “real” experts who thought otherwise. Such a juror might also find ample evidence that Trump willfully pushed aside the “real” experts around him. But the issue would not be whose word should have counted, but what Trump actually believed.

When instructing jurors on “willful blindness,” courts will often make clear that it can’t be found if the defendant “actually believed” that the relevant fact was not true. Delusional pigheadedness is indeed a defense.

So willful blindness would be a bit of a fallback for prosecutors — and proving it poses plenty of difficulties. And indeed, if at all possible, it’s best to prove the defendant knew better, which is what the Jan. 6 committee is focused on. Committee member Rep. Jamie B. Raskin (D-Md.), for one, has said flatly, “I think we can prove to any reasonable, open-minded person that Donald Trump absolutely knew.”

Whether prosecutors agree is another matter. University of Missouri law professor Frank O. Bowman said that, if he were the prosecutor, he wouldn’t try to use the willful blindness standard, because he thinks the facts are compelling that Trump knew better.

“Indeed, introduction of such an instruction into a trial of Mr. Trump would in some ways favor the defense, suggesting that there is some legitimacy to the claim that he didn’t actually know the undeniable facts,” Bowman said.

But Bowman also said that Trump’s track record looms large in making this determination.

“Given the evidence, it is only because this case involves Trump — as to whom there has always been concern that he has a tenuous grasp on reality — that willful blindness even comes up,” Bowman said. “In a case involving virtually any other defendant with this evidence available, the doctrine wouldn’t even be mentioned.

“And consider the sad/terrifying implications of that for a moment.”