“Whether Others … Said Untrue Things on the Internet Does Not Exonerate” Trump

Obstinately adhering to the pre-existing pre-trial schedule even though Trump’s immunity appeal has stayed all deadlines, Jack Smith just submitted a motion in limine asking to exclude a bunch of things from any eventual January 6 trial.

Altogether, the filing asks Judge Chutkan to exclude the following:

  1. Claims of selective and vindictive prosecution that will be settled when Chutkan rules on Trump’s motion to dismiss on the same topic
  2. Claims of investigative misconduct based on Carol Leonnig’s misleading article about the investigation
  3. Topics — such as claims that the First Amendment covers his alleged fraud — that are matters of law
  4. The consequences Trump might face, including electoral, if the jury convicts
  5. Claims that law enforcement did not adequately prepare for January 6
  6. Claims that January 6 was a FedSurrection incited by undercover feds
  7. Claims that the disinformation of foreigners, and not Trump’s own lies, mobilized January 6
  8. Discussions of revisions to the Electoral College Act passed to prevent Trump from criming (in this particular way) again
  9. Opinions from others about Trump’s state of mind
  10. Attempts to elicit witnesses to invoke privileges — such as attorney-client or Speech and Debate

The most important of these is what I’ve listed as number 9: an attempt to get witnesses to expound about what Trump’s state of mind was.

The defendant’s state of mind during the charged conspiracies will be a key issue at trial. Both parties will introduce circumstantial evidence of the defendant’s state of mind, and the defendant may choose to testify himself. But the defendant should be precluded from eliciting speculative testimony from any witnesses other than himself about the defendant’s state of mind or beliefs about the election or his claims of election fraud. In the particular circumstances here, such testimony—which would go to an ultimate issue for the jury’s consideration—would be speculative, unhelpful to the jury, and unfairly prejudicial, and should thus be excluded.

Eliciting such speculation from witnesses about what the defendant knew or believed would violate Rule 602’s precept that all non-expert witnesses must testify based only on “personal knowledge,” and Rule 701’s requirement that non-expert witnesses can provide opinion testimony only if it is based on personal knowledge and is helpful to the jury.


Allowing witnesses to share their personal views about the defendant’s state of mind likely will only distract the jury from its duty to assess and weigh the facts, as opposed to the speculation of fact witnesses. Because a witness’s personal opinion about the defendant’s beliefs or knowledge has little or no probative value, any weight the jury gives to it is likely to be undue and based on improper considerations.

This is the kind of testimony that Trump-friendly witnesses — even Mike Pence!! — have often offered in the press. And Trump could call a long list of people who’d be happy to claim that Trump believed and still believes that the election was stolen.

But as the filing notes, that would be inadmissible testimony for several reasons. It would also be a ploy to help Trump avoid taking the stand himself.

That said, there are several quips in the filing, which was submitted by Molly Gaston (who has had a role in earlier Trump-related prosecutions), that are more salient observations about Trump.

For example, in one place, the government argues that Trump should not be able to argue (as he has in pretrial motions) that it’s not his fault if his rubes fell for his lies.

A bank robber cannot defend himself by blaming the bank’s security guard for failing to stop him. A fraud defendant cannot claim to the jury that his victims should have known better than to fall for his scheme. And the defendant cannot argue that law enforcement should have prevented the violence he caused and obstruction he intended.

Relatedly, the government notes that it doesn’t matter if (as he has also argued) foreign actors also spread disinformation.

Next, any argument that foreign actors—rather than the defendant, and his ceaseless, knowingly false claims of election fraud—were responsible for inflaming his followers and causing the Capitol riot is nothing more than an infirm third-party guilt defense.


[I]n any event, whether others—be they civilians or foreign actors—said untrue things on the internet does not exonerate the defendant for the lies he told to his followers or the criminal steps he took to illegally retain power.

In 2016, Russians got too much credit for the lies they told on the Internet, absolving the more effective right wing trolls (some of whom themselves had ties to Russia) with which Trump had direct ties. In advance of his trial, Trump has tried to repeat that error, blaming Russia (and China) for his far more systematic and powerful lies.

While Judge Chutkan won’t have opportunity to rule on this motion for months yet, Molly Gaston is trying to lay a marker that, this time, Trump will be credited for the power and effect of his own lies.

26 replies
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  2. P’villain says:

    It must be a powerful temptation for the prosecution to bring its own witnesses to speculate directly or provide hearsay about Trump’s state of mind, if only to demolish the “I believed my own bullshit” pseudo-defense. It is a disciplined move, therefore, to recognize the downside and seek to remove this weapon from both parties’ hands.

    • 0Alexander Platt0 says:

      I agree. And even better is this construct of “We have plenty of hard evidence regarding your state of mind, and if you want anyone to stand up and say otherwise it has to be You.”

    • Kenneth Almquist says:

      Statements made by defendant Trump are allowed as an exception to the heresay rule if the statements tend to indicate Trump’s state of mind. The prosecution isn’t trying to keep those out.

      Witnesses speculating about Trump’s state of mind are another matter. Such speculations aren’t evidence of anything. As such they aren’t likely to affect the jury’s verdict–but if they do, it’s likely to be in the defendant’s favor. The defense doesn’t have to prove that the defendant is innocent; it just needs to create reasonable doubt. So if the jury doesn’t entirely discount a witness’s opinion about Trump’s state of mind, that might be enough to create reasonable doubt. It won’t be enough to create proof beyond a reasonable doubt.

      • P’villain says:

        I think the prosecution’s theory of the case is that the statutes charged are general-intent crimes, but I may be mixing up the DC and Florida cases.

  3. lastoneawake says:

    With all these speed bumps removed, his strongest strategy would be to delay, until SCOTUS can say it’s too close to the election to resolve these issues before November, then claim that this is a victory that proves his innocence.

    I follow all this closely, but my maga-ish relatives (mostly swingable voters) could easily accept this lie as a fact, and vote accordingly.

    And I’m not sure that the SCOTUS majority understands how easily he could ignore (or worse) their authority, even if they help him get elected.

    • John B.*^ says:

      They understand. Sometimes they may pretend they don’t, but I have to think the wisest 9 folks in the good ole US of A understand just fine…

      • CaptainCondorcet says:

        To be fair, 3 understand and are horrified. 2 understand and would be fine with Trump overriding them. And 2 are well aware they pretty much outright lied to Congress about Roe and would rather not have to deal with that. That leaves R and G as confused, and I would buy that

      • Shadowalker says:

        They understood back in 2020 as well. If they wanted Trump to remain in office they had ample opportunity to do that then.

  4. Bobby Gladd says:

    “Trump believed and still believes that the election was stolen.”

    And, of course, it apparently goes without saying that He has absolutely NO conflict of interest in repeating that claim multiple times every day. Pure, magnanimous, duty-bound, indefatigable Outer Perimeter vigilance we deserve and would expect from a president, particularly Our Favorite One.

  5. John Paul Jones says:

    I was struck by this passage:

    “Allowing witnesses to share their personal views about the defendant’s state of mind likely will only distract the jury from its duty to assess and weigh the facts, as opposed to the speculation of fact witnesses.”

    I wondered if this was aimed at diluting potential testimony from Ivanka.

  6. jecojeco says:

    A lot of spaghetti flying at the wall, mostly al dente.

    If he gets back in the WH I may be back in my ancestral home putting out beer & mincepie for Santa

  7. bloopie2 says:

    So, assuming this motion is granted in full, what would be a good defense strategy when it comes time to present the defense case? What’s still left out there?

    • CaptainCondorcet says:

      We haven’t seen all “advice of counsel” discussions exhausted from the Trump team. I’m not saying that’s a great defense, but it might be one they try from desperation.

      • emptywheel says:

        I expect they’ll say they relied on Eastman. There’s not a lot of attorney client communications that would newly become available, and he does have some expertise.

        But not Rudy.

        • earlofhuntingdon says:

          Like many Trump lawyers, Eastman appears about to lose his license to practice in California, which makes reliance on his legal opinions less credible. Unfortunately for accountability, California bar authorities move with the pace of molasses in winter,

        • Deadhead says:

          Surely, Trump himself will testify to his state of mind? That would be fun and informative. I am sure that he could of in CO as well. It is almost as if his lawyers are afraid to let him testify under oath.

  8. Buzzkill Stickinthemud says:

    Seems like that whole list would be arguments that are besides the point, and Gaston and Smith are trying get ahead of them to avoid further wastes of time.

    Trump: Vindictive prosecution!
    Smith: Objection.
    Chutkan: *sigh* Sustained.

    Trump: Undercover feds instigated Jan 6!
    Smith: Objection.
    Chutkan: *sigh* Sustained.

    Trump: What about…
    Smith: Objection.
    Chutkan: Sustained!

    Trump: But…
    Chutkan: Sustained! You’re pissing me off!

  9. bloopie2 says:

    Why is “state of mind” at issue here? How is an accused’s “state of mind” relevant? Don’t his acts speak for themselves? And what would be examples of evidence of a “prosecution-friendly” state of mind, and examples of evidence of a “defense-friendly” state of mind, on the relevant issues in this case?

    I assume “state of mind” does not refer to things like crazy or unthinking or careless or distracted or delusional, or any of the hundred other things that we would refer to in everyday talk about a person’s state of mind. Or am I wrong there?

    I did a word search for the term “state of mind” in the indictment, and I didn’t find it. Is that term in the underlying statutes? Don’t his acts speak for themselves? How is it essential for the government to prove what was in his mind (I assume that is his “state of mind”) at the time he did the acts alleged?

    Thank you for humoring me here.

    • billtheXVIII says:

      most crimes require proof of a culpable mental state – mens rea – in addition to the physical act of the crime – the actus reus. These might be intentional, knowing, reckless or less commonly, negligent crimes. A primer on criminal mental states can be found at the link below. It is not always readily apparent which mental states apply to which elements of the crimes alleged.

      [Moderator’s note: link edited to remove possible tracking. /~Rayne]

    • earlofhuntingdon says:

      State of mind refers to the intent to commit a crime, an essential element of most crimes. Trump has long been trying to claim his intent was benign. It’s not credible, but that’s his position.

    • David F. Snyder says:

      At least one of the charges requires SC to establish intent (hence the defendant’s ‘state of mind’ matters).

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