As a former criminal defense attorney, I’ve sat in rooms candidly discussing crime with thousands of criminals. I know what “consciousness of guilt” looks like. Trump exhibits it daily.
- DEFLECT BLAME. Criminals seek others who may have conducted themselves poorly in order to unload or distribute blame rightly assigned to them. Trump does this with ex-aides like Manafort, Flynn, and Papadopoulos, who he presents as little known by him and/or having gone rogue.
- ALLEGE A CONSPIRACY. Criminals will claim a conspiracy as the cause of their problems. The most common conspiracy alleged is between witnesses or members of law enforcement. Trump repeatedly alleges that government officials and law enforcement officers conspired against him.
- COMPLAIN ABOUT LAW ENFORCEMENT. Criminals want to talk about the investigation itself, rather than what and who the investigation is investigating. Trump obsessively complains about aspects of the investigation against him that don’t actually change the underlying evidence.
- TAMPER WITH WITNESSES. Criminals will often seek contact with known witnesses either to convince them not to testify, to change their story, to remain loyal to the defendant, or to intimidate them. Trump did this with Flynn, Yates, Comey, McCabe, Sessions, his son, and others.
- DISTRACT ATTENTION FROM THEIR ACTIONS. Criminals eagerly discuss subjects beyond their pending case when doing so distracts from their criminal liability. Trump’s war on “fake news” and unhinged tweetstorms distract attention from an investigation threatening to take him down.
- REFUSE TO ANSWER VALID QUESTIONS. Criminals refuse to discuss, sometimes even with a lawyer, inculpatory facts, whether things they said, decisions they made, or actions they took. Trump has successfully evaded answering even the most basic questions on what he knew and when.
- EXHIBIT FALSE CONFIDENCE. Criminals often assure allies and defenders that there’s nothing to be found against them and they’ll shortly be exonerated, even when nothing in the facts supports this view. Trump’s wild claims that he’ll soon be exonerated fall into this category.
- USE “EVEN IF” ARGUMENTS. Criminals often float self-aggrandizing hypotheticals in the form of bet-hedging: “Even if I did X, it wouldn’t be illegal, or I would’ve been justified…” Trump does this most flagrantly when discussing whether he told Flynn to negotiate with Russia.
- PLAY DUMB. Criminals will claim to have no knowledge of things they obviously would have known about. Trump claims to have known absolutely nothing any of his aides (even his own sons) were doing with the Russians, a claim that strains credulity well past the breaking point.
- EXHIBIT UNUSUAL AGITATION. Criminals exhibit anger in response to warranted criminal accusations; in my own experience, innocent people react to false accusations with signs of confusion, fear, and depression. Trump has responded to Mueller with rage and false self-assurance.
- LEVELING NEW ACCUSATIONS OF IDENTICAL CONDUCT. Criminals accused of, say, assault will often level new claims (even unrelated ones) that someone else is guilty of assault. Trump regularly accuses people of the lying, cover-ups, and treasonous conduct he stands accused of now.
- OBSTRUCTING JUSTICE. Criminals will try to slow the investigation against them, including by refusing to speak or delaying speaking to investigators. Trump not only won’t speak to investigators, he’s tried to fire, get reassigned, or force into retirement those investigators.
- AVOID GIVING EVIDENCE UNDER OATH. Criminals are smart enough to know that they must never be placed under oath on the subject of their crimes. Trump, despite saying in the Rose Garden that he’d speak to Mueller under oath, has thus far refused to make good on that assurance.
- DENY SIMILAR PAST CONDUCT. Even though criminal defense attorneys have access to clients’ criminal records, criminals often attempt to downplay or deny their criminal pasts. Trump has denied provable and known frauds, perjuries, and clandestine foreign contacts from his past.
- TELL UNNECESSARY, GRANDIOSE LIES. Criminals lie out of fear; they tell grandiose lies out of a false belief they can orchestrate their exoneration. Trump’s lies about how he conducted himself at the Ritz Moscow in 2013 (grandiose and quickly disproven) are an example of this.
- DRAW OTHERS INTO THEIR COVER-UP. Criminals are so focused on their own survival that they needlessly draw innocents into their schemes for self-salvation. Trump uses others (including attorneys, spokespeople, aides, and family members) to spread lies about his Russian ties.
- TRUST ONLY FAMILY. Criminals, especially those who’ve participated in a conspiracy, necessarily operate within a small circle of trust. Trump has surrounded his business dealings with family members and attorneys to make it unlikely or impossible that anyone will rat him out.
- PLAY WITH LANGUAGE. Criminals know statutes are well-defined, so they get cute with language to seek out wiggle room in their criminal liability. Trump uses word games, misquotations, false definitions, and linguistic misdirection to undercut precise legal terms and concepts.
- SEEK DODGY ALLIES AND PARALLEL INVESTIGATIONS. Criminals recruit dodgy witnesses or pursue suspect lines of inquiry to evade probes whose just administration they know will catch them. Trump uses House allies, Fox News, and dodgy pals to build a wall of allies around himself.
- UNDERSCORE SUPPORTERS’ AFFECTION. Criminals hope that, if they don’t have the facts on their side, they can at least get others to say they’re a good person. Trump pumps up supporters’ adulation, praise, and encouragement at every turn to transform popularity into innocence.
(BONUS) DENY KNOWN ASSOCIATIONS. Criminals deny knowing people they believe they can credibly deny knowing, if knowing them would be inculpatory. Trump has done this with Papadopoulos, Sater, Page and many others who he definitely knows but who he fears Mueller has linked to him.
(NOTE) The above applies only to the 5% of arrested individuals who a) did exactly what they were accused of, and b) refuse to admit what they did and then seek a just punishment via plea. Trump is in the tiny minority of criminals who won’t take responsibility for their actions.
(THANKS) Many thanks to the excellent David Swerdlick of The Washington Post, who encouraged me to flesh out and publish this analysis, and who saw an early draft of it. And thanks to the many criminal defense attorneys I spoke with over the months while preparing this summary.