Ruth Marcus has an interesting opinion piece on this (paywalled) in WaPo. The use of the word "willingly" in 52 U.S.C. § 20511 might be key, because it means Trump would have to know what he was doing was illegal. Also, the fact (I think I can say "fact" there) that he lives in an alternate reality might be useful to his defense if he were prosecuted -- he might actually believe he won the state, despite having no genuine reason to.

Would claims of such a belief be subject to some sort of reasonableness standard? If "I thought it wasn't wrong" were a universal get out of jail free card, no one would ever be convicted of anything.

@Nobody: Most laws don't have the explicit "willingly" language in it, or there's a lesser offense that doesn't require as much volition on the perpetrator's part (e.g. murder vs. manslaughter). I once heard a legal commentator (might have been Ken White?) cynically opine that laws where "I didn't know it was wrong" is a valid defense tend to be the ones that lawmakers themselves might run afoul of; but I have no idea if that's actually true.

I think it's worth pointing out this is political, not just legal, issue. There has never been a situation where a president was prosecuted for crimes while in office before, and doing so may set a precedent. There is concern that such a precedent could start a trend of political parties threatening to prosecute a president for things they did in office as a threat to bully him with going along with their demands. As such many are hesitant to prosecute even if a crime was committed, and thus a situation where it's ambiguous if a crime was committed is unlikely to be prosecuted.

@dsollen I guess Watergate is the precedent: Nixon would have been prosecuted for things he did in office, had it not been cancelled by Ford's pardon. Whether the lesson is "ex-Presidents are subject to prosecution" or "ex-Presidents should be pardoned to avoid the political headache", I don't know :-)

"Trump would have to know what he was doing was illegal." Do you mean he would have to know that there a law against X, or do you mean that he would have to know that his actions constitute X?

@Acccumulation The text is knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process... They don't have to know it's against the law, but they have to know they're defrauding the residents of a State. I suppose the argument is that if someone believes they're arguing against fraud, then it's not a violation.

@dsollen On the other hand, if he's not prosecuted, it shapes the precedent of "the US president can do whatever he wants and the worst possible consequence will be that he doesn't get re-elected" and that doesn't really strike me as a good one either.

@GS-ApologisetoMonica Precedents are nice to have to refer to, but in my (admittedly non-lawyer) opinion, they boil down to "we didn't have a clear idea what to do the last time this happened, and here's what we tried" and should very much be examined with the question "and how well did that work out?" and if that question has no satisfactory answer, maybe this time we should try something else instead.

@Joe Many people have said that there was no fraud, of course, but Trump started his message of "I can only lose if there's fraud" well before the election and has stuck to it. Of course this does present some problems for his supporters, that either he can have broken that law by "knowingly" trying to defraud a fair election, or he can be mentally deranged by genuinely but irrationally believing in fraud.

@Shadur I don't disagree, but politics is what it is. I'm just pointing out a factor that will play a role. To be even more political the fact is just under 50% of the US is republican and almost 80% of republicans still believe there was rampant voter fraud, so it would be hard to prosecute when a bit under 40% of the country are confident what happened wasn't fraud, since it was an attempt to counter what they see as existing fraud, and the other 60% still need to be convinced that it was willing fraud on the president's side. Politically it's a no-go regardless of the laws.

@Graham Since when has rationality played a role in politics? :P

@Accumulation: "Trump would have to know what he was doing was illegal" - well, I'll tell ya, "Ignorance of the law is no excuse" was drilled into my head many years ago. Otherwise committing any crime would be allowable as long as the defendant claimed they didn't know their actions were illegal. Also - his attempt to get Georgia state officials to "find" 11,000+ votes means he runs afoul of "...or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process...".

@dsollen Nothing new there either, he started drumming on that in 2016 when everyone still expected him to lose. And I still disagree that letting him go is going to accomplish anything but let him set up for a 2024 run or something even worse because the only thing not prosecuting him has ever taught him is that he can do whatever he wants with no consequences ever.

@T.J.Crowder - any sort of "I know I won Georgia by 500K votes" alternate reality defense is going to be laughed out of court. He cannot say "I need 11K votes - come on, guys" and claim that he "knows" he won. And if he can hold both of these positions in his mind simultaneously it means it's time to invoke section 4 of the 25th amendment.

Why is prosecution a political question? What happened to the whole separation of powers question? @dsollen is basically claiming that rule of law no longer applies to US elections

@BobJarvis-ReinstateMonica - If they'd asked me, I would have said the time for that was quite some time ago. ;-) (And heaven help us, I actually do think he's so far gone he can manage the superposition of concepts...)

In the UK, you can not be charged with a crime if you don't have sufficient mental capacity to understand the concepts of "right and wrong" or "legal and illegal." If the same is true in the USA, Trump would seem to have a pretty good defence. Note, understanding the concept of legal/illegal is not the same as knowing that any particular action is legal/illegal (which is not a valid defence).

He might end up regretting passing that MOCA test.