To hear his lawyers tell it, Donald Trump was alarmed by Russia’s interference in the 2016 election, motivated as president to focus on cybersecurity, and had a good-faith basis four years later to worry that foreign actors had again meddled in the race.
But to federal prosecutors, 2016 is significant as the year that Trump spread misinformation about voter fraud and proved himself resistant to accepting the outcome of elections that might not go his way.
Even though a trial set for next year in Washington is centered on Trump’s efforts to overturn the 2020 election, lawyers on both sides have signaled their desire — for totally different purposes — to draw attention to the tumultuous presidential contest four years earlier as a way to help explain his state of mind after his loss to Democrat Joe Biden.
“When we’re talking about someone’s belief or mental state, there is usually no one piece of evidence that is dispositive,” said David Aaron, a former Justice Department national security prosecutor. “There’s usually multiple data points that each side will argue indicates one mental state or the other.”
The callback to the 2016 race is perhaps not surprising given the history-making events of that year, when Russian operatives interfered in the election with what U.S. officials say was a goal of getting Trump elected over his Democratic rival, Hillary Clinton. The meddling and its aftermath thrust the topic of election security and faith in democratic processes to the forefront of American discourse.
It will ultimately be up to U.S. District Judge Tanya Chutkan to determine what evidence is admissible at trial and what materials defense lawyers are entitled to get from prosecutors as part of the information-sharing process known as discovery. Special counsel Jack Smith’s team says information about the 2016 election being sought by the defense is “wholly irrelevant” to the current case while telling Trump’s lawyers and the judge that it wants to present evidence about Trump’s history of claiming fraud.
The interest in 2016 was laid bare in recent court filings, including one in which defense lawyers made a long-shot request to force prosecutors to turn over all materials, including a classified version of a U.S. intelligence assessment, related to Russian interference and influence operations in that election.
They say the intelligence community’s 2017 assessment that Russia’s meddling in the race reflected a “significant escalation” by the Kremlin has direct bearing on Trump’s confidence, or lack thereof, in the security of the 2020 election and helps explain the basis for him to have been “skeptical about the absence of foreign influence” in that year’s race.
They also contend that actions he took as president, including a 2018 executive order imposing sanctions for foreign election interference, show he took the subject seriously. And they argue that the intelligence community assessment that Russia in 2016 sowed public discord shows Trump is not responsible for creating the environment prosecutors are now trying to “blame” him for.
“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,” defense lawyers wrote.
The motion, which glosses over the fact that Trump was the intended beneficiary of Russian interference in 2016 and that Trump as president often sought to minimize that assessment, is pending. Even if it’s unlikely Trump’s lawyers will be able to persuade Chutkan to order prosecutors to produce the materials, the request opens a window into a line of defense the team could raise.
In a response, federal prosecutors said they were not in possession of the classified information being demanded and that the request was part of an effort to delay the case. They also say there’s no evidence the 2020 race was tainted by foreign interference.
Meanwhile, Smith’s team sees 2016 as relevant for other reasons.
The prosecutors say they want the jury to hear Trump’s “historical record” of sowing doubt in election results, including in 2016, when he claimed without evidence before Election Day that there had been widespread fraud and refused during a debate with Clinton to promise to respect the results of the election.
The behavior started even earlier, Smith’s team notes, when Trump falsely claimed during the 2012 election that voting machines had switched votes from Republican candidate Mitt Romney to Democrat Barack Obama.
“The defendant’s false claims about the 2012 and 2016 elections are admissible because they demonstrate the defendant’s common plan of falsely blaming fraud for election results he does not like, as well as his motive, intent, and plan to obstruct the certification of the 2020 election results and illegitimately retain power,” prosecutors wrote.
Although the federal rules of evidence do not permit prosecutors to present evidence of prior bad acts to prove a person’s character, they can do so to establish intent, motive or preparation — which is what prosecutors say they want to do here.
Such evidence could be compelling for a jury to the extent it shows Trump’s effort to undo the 2020 results was part of a long-running pattern of behavior, said Tamara Lave, a professor at the University of Miami law school.
“When Trump takes the stand or when the lawyers argue, ‘He didn’t mean this, he was just saying this, that’s just Trump’s way, he’s just over the top,’ the government gets to say, ‘No, that’s not what’s going on here. You’ve seen this over and over and over again. And so the fact that it’s been going on for so long is an indication that there’s nothing accidental about it,'” she added.
Lauren Ouziel, a former federal prosecutor and a professor at Temple University’s law school, said she expected prosecutors to be able to use Trump’s prior statements at trial, but it will be up to jurors to decide how meaningful the evidence is.
“Prosecutors like to use an analogy of bricks in a wall: ‘We’re going to give you evidence brick by brick, and by the end of the trial, it’ll all fit together,'” she said. “And I would call this some of the bricks.”
