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The criminal trial of Donald Trump on charges of trying to illegally overturn the 2020 election will hinge on whether he knew his claims of voter fraud were false.
Prosecutors will have to prove “mens rea” – a “guilty mind” or criminal intent – showing that Mr Trump was lying when he told supporters he believed the election was “stolen”.
Legal analysts were divided on whether the 45-page indictment from special counsel Jack Smith demonstrated that was Mr Trump’s state of mind.
According to the charges Mr Trump “did knowingly conspire” to “defraud the United States” by spreading “lies” about the election result.
‘It’s very hard to prove’
But Brett Tolman, a former federal prosecutor, said Mr Trump would be able to defend himself by saying he “didn’t buy the result” and was therefore entitled to challenge it.
Referring to the indictment he said: “The most important element is the mens rea one. I don’t see the intent here.
“You can put all kinds of whipped cream on manure, and it’s still manure.”
Tim Parlatore, a former lawyer for Mr Trump, said: “It’s very hard to prove. He [Mr Trump] does truly believe there was fraud. He believed it then. He believes it today.
“It’s an incredibly high mountain to climb [for the prosecution].”
However, other legal analysts called the indictment a “masterpiece”.
The indictment said that “these claims [of fraud] were false and the defendant knew that they were false.”
It said Mr Trump was “notified repeatedly that his claims were untrue – often by the people on whom he relied for candid advice on important matters.”
Despite that he “deliberately disregarded the truth,” it said.
‘Base’ has become more entrenched
Included in the indictment was an email from a key Trump adviser prior to the US Capitol riot on Jan 6 2021.
In the email the aide called the election fraud claims “conspiracy s— beamed down from the mothership.”
The indictment – Mr Trump’s third – led Democrats, and some Republicans, to predict his demise.
But the former president’s political obituary has been written many times before.
If precedent is anything to go by, then the latest indictment will mean he not only maintains his support, but reinforces it.
So far, each time he has been criminally charged Mr Trump’s “base” has become more entrenched, as have his opponents.
The previous indictments related to possession of classified documents, and a hush money payment to porn star Stormy Daniels.
After those two cases were brought he saw a boost in fundraising as he accused Democrats of weaponising the justice system against him.
Within minutes of the latest charges Mr Trump’s campaign sent out an email offering “I Stand With Trump” T-shirts for $47 (£36).
The charges mean that if Mr Trump is the Republican nominee, which currently seems probable, the chances of any voters switching sides in 2024 become ever more remote.
It means next year would see a “turnout” election in which Republicans and Democrats both seek to energise their core voters, rather than trying to persuade the other side.
According to recent polling Mr Trump and Joe Biden have exactly the same level of support – 43 per cent.
That figure has remained virtually unchanged since before Mr Trump had been the subject of any indictments.
It is unlikely to change much after his third.
