Trump Seeks Evidence of 2020 Election Fraud in Federal Criminal Case

Former President Donald Trump speaks at the National Rifle Association Convention in Indianapolis, on April 14, 2023. Michael Conroy/AP Photo

Lawyers for former President Donald Trump are asking a federal court in Washington to compel federal prosecutors to turn over evidence suggesting the existence of election fraud in the 2020 election, which they say will aid President Trump’s defense in the case.

President Trump’s lawyers argue in a pretrial motion (pdf) filed late Monday that the former president’s concerns related to fraud in the 2020 presidential election “were plausible and maintained in good faith,” citing numerous official investigations after the election that found alleged evidence of foreign influence in the election.

In a line of argument that experts say sheds light on President Trump’s defense strategy at trial, the lawyers state that President Trump in 2020 was “not obligated to credit” assessment by officials who said there was no evidence of election fraud, and that foreign actors may have sought to influence the election.

The motion is the latest legal volley in one of President Trump’s federal criminal cases, in which special counsel Jack Smith charges that President Trump ignored findings by officials that there was no widespread election fraud and launched an illegal plot to undo the election and block the peaceful transfer of power. Mr. Smith accused the former president of conspiring to defraud the United States, obstructing and conspiring to obstruct official proceedings, and conspiring to violate rights. President Trump has denied all wrongdoing in the case and alleged that the case is politically motivated.

Because the contention that President Trump “genuinely believed that the election was stolen” will be argued at trial, the former president’s lawyers argue in the motion, evidence that cast doubt on the integrity of the 2020 election would bolster President Trump’s argument that his conduct was absent of criminal intent. They argue that this evidence is exculpatory, or evidence favorable to the defense, which prosecutors must provide to the defendant under the legal precedent Brady v. Maryland.

“President Trump is entitled to all information supporting his position that his concerns regarding fraud during the 2020 election—rather than ‘knowingly false’ or criminal … were plausible and maintained in good faith,” the lawyers wrote.

Following this rationale, the lawyers requested that the court compel Mr. Smith to produce any evidence that indicates “the impact of foreign influence” and “actual and attempted compromises of election infrastructure,” as well as evidence of potential “political bias” that could have shaped intelligence community’s assessment of the 2020 election.

The motion recounts Russian efforts in 2016 to undermine confidence in that year’s election, and the intelligence community’s finding in August 2020 that foreign state actors such as Russia and China sought to interfere with the 2020 election. It also quotes a Jan. 7, 2021, memo from John Ratcliffe, the then-director of National Intelligence, that said China sought to influence the election. Moreover, the motion seeks information from prosecutors about “Solar Winds,” a Russian cyberespionage campaign in 2019 and 2020 that affected numerous federal government agencies. It added that President Trump “expressed concern” about vulnerabilities in election infrastructure Executive Order 13848, which he signed as president in August 2018.

“These materials are discoverable because information relating to a ‘significant escalation’ of foreign influence in the 2016 election motivated President Trump and his Administration to focus on foreign influence and cyber risks, as reflected in Executive Order 13848, and to be skeptical of claims about the absence of foreign influence in the 2020 election,” the motion stated. “This evidence rebuts the position of the Special Counsel’s Office that President Trump’s actions between November 2020 and January 2021 were motivated by a desire to maintain office and undertaken with specific intent and unlawful purpose.”

In addition, the lawyers also requested in the motion that the prosecution provide evidence inconsistent with the claim that President Trump was responsible for the Jan. 6, 2021, Capitol breach; any evidence of bias and investigative misconduct on the part of the prosecutors, such as Foreign Intelligence Surveillance Act abuses and any coordination with the Biden administration.

In a separate motion to dismiss, President Trump’s lawyers asked Judge Tanya Chutkan, the judge overseeing this case, to dismiss the indictment, arguing that the former president is shielded from prosecution by presidential immunity and that the charges violate his First Amendment rights. The judge has not acted on that motion as of writing.

Proving Criminal Intent

While the motion aims to compel prosecutors to turn over discovery material, it signals President Trump’s legal defense strategy in the case and advances an issue that likely strikes at the heart of the matter, John O’Connor, a former federal prosecutor, told The Epoch Times in an interview on Tuesday. That is, whether the former president knowingly made false statements regarding the election, a component required to establish the requisite criminal intent for the charge of defrauding the United States, Mr. O’Connor said.

That is a weak link in the prosecution’s case, Mr. O’Connor said, adding that he believes “Jack Smith had made a real strategic error” in positioning the indictment as to require this element of intent.

A potential approach that the prosecution can take to prove—the high burden of beyond a reasonable doubt—that President Trump knowingly made false statements is to use circumstantial and corroborating evidence to show that he acted with “reckless disregard” of the truth, attorney Albert Watkins told The Epoch Times. In other words, Mr. Smith would need to show that President Trump disregarded information in a way that was an extreme departure from the care a reasonable person would exercise in similar circumstances. Mr. Watkins said this standard would be “challenging” for Mr. Smith to meet.

One caveat that may apply to President Trump’s case is a concept of “conscious avoidance,” or if the defendant’s “ignorance resulted from his conscious decision to avoid learning the truth,” Michael Scotto, a former prosecutor, told The Epoch Times in a statement on Nov. 28.

“Under those circumstances, it is not a defense to be willfully blind,” Mr. Scotto wrote, adding that federal courts have differed in their usage of this concept.

Mr. Scotto added that a precedent that may apply is United States v. Reyes, in which the court said that it does not permit the conscious avoidance “doctrine to be used to prove intent to participate in a conspiracy,” which is what Mr. Smith is charging President Trump.

The Epoch Times contacted the Department of Justice for comment.

The Associated Press contributed to this report.