Even civil litigators know their way around an intent element. For instance, in one of the jurisdictions I am licensed in, promissory estoppel has an intent element: the promisor must have intended to induce reliance on the promise in order for there to be a cause of action. When you get to trial, though, you don’t see a whole lot of defendants testifying, “Yes, you got me, I made this promise, and I sure did intend for the plaintiff to rely on it to his detriment.” No, a lawyer must demonstrate, using circumstantial evidence, that the defendant’s purpose was to induce reliance on the promise.
An even better example is undue influence. In layman’s terms, undue influence basically means pressing a dotty old grandma or gramps into changing her or his will in your favor. Undue influence has a higher burden of proof than unjust enrichment (clear and convincing evidence versus preponderance of the evidence), and the whole damn thing is kind of a drawn-out intent element: “To invalidate a will for undue influence, a contestant must show that another person exercised influence at the time the testator executed the will to the degree that the will reflects the other person’s intent instead of the testator’s intent.”
Again, nobody who is being accused of unduly influencing Pappy or Mema into disinheriting the other grandkids just admits it because, if they did, then you wouldn’t have to go to court over the whole thing, would you? So how do you prove undue influence? Almost always by circumstantial evidence. You show motive, opportunity, and disposition. You show what the influencer’s preferred distribution of the property would have been, and compare that to what the will actually says and what other people say the decedent would have actually wanted. You cross-reference documents, look for differences from how wills are more typically prepared. You ask the people who were around the relevant parties what they observed.
If you are forced to resort to litigation, you rarely get admissions. Yet, lawyers nonetheless have to prove intent elements all the damn time, and we often do it very successfully.
Which is why it’s disappointing to hear a lot of legal commentators being mealy mouthed about the supposed difficulty of proving Donald Trump’s criminal intent if he is indeed charged with a crime following the January 6 hearings.
Sure, it will be hard to convict Trump of a crime, but not because of issues with proving his intent. It will be hard to convict Trump because he is a former president who still has political support from a substantial minority of Americans.
The intent evidence, though, is almost over the top. Trump is on tape pressing election officials with lies and threats to change vote totals in his favor, to “find” votes for him. Almost everyone close to him — with the exceptions of a drunken Rudy Giuliani (“just say we won,” said Giuliani) and purported lawyer John Eastman (who asked for a pardon in advance with apparent knowledge his own actions were likely criminal) — repeatedly told Trump he lost the election and that his false claims of massive voter fraud were “complete bullshit.”
Undeterred, Trump pressed Mike Pence to somehow reject the will of the voters (come on, even a third-grader knows it is not legitimately within the power of a vice president to overturn an election, Trump obviously knew that too). When Pence wouldn’t bend to his will, Trump praised and condoned the January 6 violence and failed to do anything about it for hours.
Forget all the legalese for a moment, and simply ask yourself: Are these the actions of a man who has no idea what he is doing or why he is doing it?
A number of media presences have framed the intent issue as some kind of insurmountable hurdle because we can’t really get inside Trump’s head, so if he says he actually believed he won the election, we just have to take him at his word that he had no criminal intent. That perspective is bonkers.
In every single legal case that goes to trial on any cause of action which includes an intent element, the defendant claims not to have had the requisite intent. Trump is no different.
Trump knew he lost the election. He lied about it anyway to try to stay in office and to continue to siphon money from his own supporters. The evidence of this is clear, it is overwhelming, and a lot of it is in Trump’s own words. Entire legal careers dawn and sunset without seeing stronger evidence of intent. If Trump doesn’t get prosecuted once these hearings are over, and we all just have to live with a gross miscarriage of justice that almost cost us the nation, fine. America’s been through worse. But don’t blame the supposed difficulty of having to prove someone intended to do something.
Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at [email protected],