The Words Of Sedition That May Be Hidden In Trump Emails

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Apparently, those close to President Donald Trump exchanged many emails analyzing how to overturn the results of the 2020 election. Some of those communications may have encouraged or assisted the January 6 mob in the attack on the Capitol. Other memos, PowerPoint decks, emails, and text messages all considered ways the vice president, members of Congress, state election officials, and others could move votes from the Biden column to the Trump column and thus change the result of the 2020 election.

In all those communications, what are the words that will send someone to jail?

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So long as people can honestly say that they thought Trump won the election, then it’s probably not sedition to try to move votes from Biden to Trump. If you thought Trump actually won, then moving votes from one person to another is arguably simply trying to right a wrong — trying to fix the mistaken public impression that Biden won the 2020 election.

But, if you knew that Trump lost and still tried to change the election results, that’s a whole different matter. Thus, these are the words that could cost someone jail time:

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“Although I know that Trump lost ….”

If you know that Trump lost and, with that knowledge, you assisted a mob, or tried to convince a state election official to change results, or tried to convince a member of Congress to vote to overturn the election results, or otherwise sought to interfere with the election, then you’re in trouble.

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Knowledge lifts the facade: You knew that Trump lost, but nevertheless tried to change the election results.

That’s criminal.

Proving intent is a hard thing. So long as a witness insists that the witness thought Trump had won, then it’s tricky to establish intent. But a document that acknowledges that Trump lost and nonetheless tries to interfere with an election result? Pack a toothbrush.

Does a document exist that says, “Although I know that Trump lost, [I propose taking the following steps to overturn the result of the election]”?

I have no idea.

The January 6 Committee may now know the answer to this question, or the January 6 Committee may know that, to date, that terribly incriminating document has not yet surfaced.

(The January 6 Committee may also have seen a text message that says, for instance, “I don’t care whether or not Trump lost; either way, we should do the following things to overturn the apparent result of the election: ….”  Would that message merit jail time? Don’t ask me; that’s why we have juries.)

But an awful lot of people seem to have sent an awful lot of memos, and PowerPoint decks, and emails, and text messages trying to overturn the election results.

I suspect you won’t see language disclosing evil intent in a formal memo or a PowerPoint deck. One tends to scrub formal presentations before sending them out, so one would be a fool to leave in a formal presentation incriminating words that could send the author to prison.

But emails, text messages, and other electronic communications are far less formal than memos and presentation decks.

I’ve seen an awful lot of stupid emails in my time.

If I had to bet, I’d place about even odds on the public one day seeing a document that starts more or less with the incriminating words, “Although I know that Trump lost the election ….”

The person who wrote those words will (for good reason) regret those words for eternity.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

Topics

Crime, Donald Trump, Government, January 6, Mark Herrmann, Sedition