For most Americans watching and parsing out the January 6th Committee’s hearings, the House Committee seems to be making a compelling case for the 45th president’s criminal culpability. Through countless documents and scores of interviews with Trump’s inner circle, the Committee has outlined that Trump was more involved in the insurrection than previously known. Trump wasn’t just ignorant to the realities of the 2020 Election, he was “willfully ignorant” and chose to knowingly ignore all of the facts that his advisors, including Attorney General Barr, implored upon him.
If Trump was indeed “willfully ignorant,” Attorney General Merrick Garland and the DOJ have a legal roadmap for indicting the 45th President of the United States. As Harvard Law Professor Lawrence Tribe has noted throughout these proceedings, there is a legal doctrine around the idea of willful ignorance, and it could be Trump’s death knell.
But what exactly is the legal theory of “willful ignorance”? There has been much scholarly writing about this doctrine, in particular, is an excellent law review article authored by Alexander F. Sarch, which defines this doctrine as the following:
When a defendant is charged with some crime requiring knowledge of some fact, but the defendant deliberately avoided learning whether the fact in question obtained, it is common practice among federal courtsto give so-called willful ignorance instructions. Such instructions tell the jury that it may find the knowledge element for the crime to be satisfied by the defendant’s willful ignorance of the relevant fact (also called the inculpatory proposition).
To cast this doctrine in another light, again quoting Sarch: “… juries may find a defendant to have possessed the requisite knowledge for a given crime merely on the ground that he was willfully ignorant of the relevant fact”.
The Supreme Court and all federal courts of appeals have adopted a version of this doctrine in one form or another. On one hand, certain of these appeals courts require proof of an existing motive for remaining in ignorance besides proving the elements of (1) having suspicions about the fact of which knowledge is required; and (2) deliberately refraining from investigating the existence of the relevant fact.
Other federal appeal circuits do not require a supporting motive, including a notable case argued before the 9th Circuit in San Francisco called United States v Jewell. It states, “[t]he substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable.” And in the 2011 United States Supreme Court decision in Global-Tech Applications, Inc. v. SEB S.A., our high court opined, “[t]he traditional rationale for this doctrine is that defendants who behave in [a willfully ignorant] manner are just as culpable as those who have actual knowledge.”
Let’s apply this legal thinking to Trump.
Leading up to January 6, Trump actively searched for devoted sycophants who were more than willing to warp reality in Trump’s favor – or, as WSJ columnist Peggy Noonan calls them, the “kooks, crooks, and freaks.” These are people like Rudy Giuliani who, according to one witness in the January 6 hearings, was visibly intoxicated when conferencing with Trump about election results. There’s also attorney Sydney Powell who was sanctioned with others to pay $175,000 by a Michigan federal trial court and affirmed on appeal for pushing a frivolous lawsuit claiming election fraud in the 2020 elections. Then there’s John Eastman, Trump’s lawyer outside the administration, who admitted openly that the theory he advanced to Trump for overturning the election was illegal and would have been shot down 9-0 in the Supreme Court.
Trump was told by many responsible attorneys and advisors within his inner circle that the idea of the election being stolen was farcical. Attorney General Bill Barr, most notably, said such a theory was “bullshit.”
From the scores of frivolous lawsuits that Trump’s legal team issued following the 2020 election to pushing the misguided legal theory that the Vice President can unilaterally overturn the will of the electorate, the January 6 committee has outlined how Trump willfully avoided reality for political ends. All of this is well-etched in history now, of course, but the strength of the January 6 Committee is outlining this timeline along with the nefarious planning that Trump spearheaded behind the scenes.
And as if to add a “cherry” to the top of what the January 6 committee has been building for public consumption (and the DOJ) was what could only be described as bombshell testimony by Cassidy Hutchinson, a top aide to Trump’s Chief of Staff, Mark Meadows, presented at a very last-minute, June 28 hearing. Among her testimony was Trump’s knowledge of being warned that the crowd he wanted to lead to the Capitol after his January 6 speech was heavily armed. And despite his Secret Service detail refusing to drive him there, Trump-again according to Hutchinson’s sworn testimony-tried grabbing the steering wheel of the vehicle that took him away after his speech and even lunged in the vehicle at Robert Engel, head of his detail, after Engel telling him he was not going to the Capitol. After being told that the rally that day would be limited by magnetometers that would keep the size of the crowd down, it was told to Hutchinson that Trump said words to the effect, “I don’t f—ing care that they have weapons. They’re not here to hurt me. Take the mags away. Let the people in, they can march to the Capitol from here.”
What would be left for Trump to assert as a defense, should he be criminally indicted for crimes requiring proof of knowledge or intent? Trump could potentially argue that he was “mentally incompetent,” but it is unlikely he would ever allow himself to be cast as incompetent, especially if he were to run again in 2024.
The death knell for Trump will be this legal doctrine of willful ignorance, grounded in the rule of law which Trump has ducked, snookered and avoided his entire life. AG Garland, are you listening?
A graduate of Case Law School in Cleveland, Miles Zaremski is the longest-serving chair of the American Bar Assoc.’s Standing Committee on Medical Professional Liability and a past president of the international organization, The American College of Legal Medicine.