Jack Smith Faces Huge Challenge in Finding Donald Trump Guilty—Here's Why

Federal prosecutors may find it difficult to prosecute Donald Trump over the attempts to overturn the 2020 election if they cannot prove criminal intent from the former president, legal experts have said.

Trump has been indicted for the third time this year as part of Special Counsel Jack Smith's investigation into the events that led up to the January 6, 2021 Capitol attack.

The 45-page indictment accused Trump of being determined to remain in power after he lost the last presidential election to Joe Biden and detailed four federal charges against him. These are: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.

Trump, the early frontrunner in the GOP 2024 primary, has long denied any wrongdoing in connection to the attempts to overturn the election. He still falsely claims it was "rigged" due to widespread voter fraud. The charges add to the former president's legal woes, as he faces trials relating to falsifying business records and allegations he hoarded classified documents and then obstructed the federal attempt to retrieve them.

In a statement on Thursday, Trump's office accused Smith's probe of election interference as being part of a grand plot to prevent him returning to the White House. Trump's team also defended the former president's actions as he had "followed the law and the Constitution, with advice from many highly accomplished attorneys."

Former federal prosecutor Neama Rahmani, president of West Coast Trial Lawyers, told Newsweek that, despite the January 6 indictment being the "most politically explosive," it will also be the most difficult to return a guilty verdict.

"Prosecutors will have to prove some sort of knowledge of wrongdoing. They have to prove Trump knew that he was committing fraud. So if Trump says, 'I just relied on the advice of my attorneys, and I didn't know it was wrong or illegal,' then that's a defense in this case," Rahmani said. "If he can prove it was only aggressive lawyering, then he can be acquitted."

Joshua Ritter, a Los Angeles criminal defense attorney, told Newsweek that the January 6 indictment lacks a bombshell revelation and most of the allegations have been known for the past two-and-a-half years. As a result, the central problem that the prosecution will face to get a guilty verdict will be trying to address what was going on in Trump's mind.

"The prosecution even says in the indictment every American has a right to speak publicly about an election and to make claims that might not be true. But what they're saying is that Trump took that a step too far," Ritter said.

"They'll have to prove what was happening in Trump's own mind, and that's very difficult, short of an incriminating statement of motive coming out of his own mouth."

Ritter added that Trump may have a built-in defense that he was relying on information provided to him, and that his false election-fraud cries were not "part of some elaborate, preconceived conspiracy, but were merely very vocal musings that most people would keep to themselves."

In the indictment, prosecutors say that Trump knew his voter-fraud claims were false. They add that he was "notified repeatedly that his claims were untrue—often by the people on whom he relied for candid advice on important matters, and who were best positioned to know the facts."

Among the examples that the Department of Justice list of people telling Trump he had lost the 2020 election fairly were: former Vice President Mike Pence; his own attorneys; leading officials in the DOJ, such as ex-attorney general Bill Barr; and members of the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency.

Former federal prosecutor Christine Adams told Newsweek that the indictment shows prosecutors are relying on being able to prove that Trump's actions were illegal because of the intent behind them.

"You can legitimately challenge election results, procedures and electors. But the heart of what they are alleging is that he engaged in these actions with corrupt intent, and not because he legitimately believed election fraud had taken place," Adams said.

"The indictment carefully ties allegations of Trump's illegal actions to specific allegations demonstrating that Trump was informed or otherwise knew that those actions lacked any legitimate legal or factual basis. According to the indictment, many people around him told him there was no evidence of fraud or other evidence on which he could base a good-faith challenge to the election," Adams added. "The effect is to show that he did these things, knowing full well they were all for nefarious reasons."

In laying out the case, the DOJ says that Trump had a right, like every American, to speak out against the election and even to challenge the results via lawful means.

Prosecutors added that Trump had also allegedly pursued unlawful means of discounting legitimate votes and subverting the election results in an attempt to target the "bedrock function of the United States federal government: the nation's process of collecting, counting, and certifying the results of the presidential election."

In a statement denying all wrongdoing, Trump's office said: "Why did they wait two and a half years to bring these fake charges, right in the middle of President Trump's winning campaign for 2024? Why was it announced the day after the big Crooked Joe Biden scandal broke out from the Halls of Congress?

"The answer is, election interference! The lawlessness of these persecutions of President Trump and his supporters is reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes," the statement added. "President Trump has always followed the law and the Constitution, with advice from many highly accomplished attorneys."