One potential charge that is getting a lot of attention on social media is conspiracy to defraud the United States, which would require the Department of Justice to prove beyond a reasonable doubt that Trump agreed with others to obstruct a lawful function of the government by deceitful or dishonest means. I’ve charged that statute before when I was a federal prosecutor in the context of a dishonest tax avoidance scheme.
At the core of any fraud prosecution is proving the defendant’s dishonesty and intent to defraud beyond a reasonable doubt. That’s why Trump’s state of mind — in particular, proof regarding whether he believed what he was peddling — is so important. And why his rather complicated state of mind presents serious problems for prosecutors.
Some have suggested that prosecutors can sidestep this problem by relying on a willful or deliberate ignorance theory. In certain circumstances, the law recognizes that a defendant’s deliberate attempts to avoid knowledge of an incriminating fact demonstrates their knowledge of that fact. For example, if someone approaches you a few miles from the U.S. border and offers you $5,000 to drive a U-Haul across the border, your deliberate refusal to look at what’s