What Did The President Do, And When Did He Do It?

 What did the President know, and when did he know it?

That is not a defense here," he added. "What I mean by that is that you can think subjectively that the election was stolen. It doesn't mean you get to storm the Capitol, for example. And that's the difference. If you're engaging in something that you believe to be illegal, even if you have good intentions, that's still a crime. That distinction is going to be really important."

The famous question was first posed during the Watergate scandal. Nixon was the president then. The question has since become the gold standard for discussing criminal prosecutions. It’s understood to be the question of criminal intent.

It isn’t.

Criminal intent divides the question of the criminal act (you need both to establish a crime: a mens rea, often called “guilty mind,” and an actus reus, or criminal act) into two categories: intentional, and negligent. You’re culpable if negligence or intent is proven; but the punishment is worse for the latter, for what should be obvious reasons.

Now, not all crimes can be committed negligently; which means some require proof of intent. But proof of intent does not require a confession from the accused, or even clever cross-examination that gets more than the defendant wanted to reveal. It is shown by evidence proving the accused acted knowingly (as opposed to negligently, which might be a defense). If proving intent required evidence directly from the accused, every criminal case in America would founder on the 5th Amendment. The law doesn’t require first-hand evidence of the accused’s state of mind. Intent can be inferred from evidence of actions or statements made to witnesses.

So the ceaseless blather that Trump is finally caught by some tape or witness statement finally revealed to the public is as mindless as Trump’s constant cries (and efforts in court) to dismiss his New York fraud suit because of the testimony of one witness.

That only works on TeeVee, where they need to wrap up the trial in 60 minutes, including commercial breaks.

No one witness is going to make, or break, a trial. I’ve sat through trials, they are never that dramatic. A bad witness is a burden, a good witness a blessing, but if your cases rises or falls on one witness, you’re doing it wrong. 😑 

What did the President know, and when did he know it, is too strict a standard (and even then Nixon stumbled). It’s a political question, not a legal one. The question facing Trump some 91 times is: what did the President do, and when did he do it? The jury will decide why he did it based on the evidence of what he did, which will include what he said and what he was told. They will decide whether he had the requisite criminal intent. And Trump won’t have to testify about his “subjective” state of mind, for them to do it.