Thursday, April 18, 2019

Stupid is as Stupid Does

Raw Story quotes the language of the report on Jr.'s culpability in the infamous Trump Tower meeting (the report devotes 13 pages to it), and decides it proves Jr. was too dumb to be prosecuted.  You're going to see this argument, and it's one a defense attorney like Barr would love for you to accept as gospel.  But it ain't the law; not by a long shot.

"Knowingly" does not mean you must have specific knowledge of the applicable statutes or you can violate the law with impunity. When Mueller decided not to prosecute Trump, Jr. for the Trump Tower meeting, it was because of insufficient evidence; not because Trump , Jr. is s benighted fool.

“The Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted ‘willfully,’ i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation,” the report states.
Jr. would undoubtedly go to court with a defense of "Who knew campaign law was so complicated?", and the court would dutifully tell the jury ignorance of the law is no excuse.  But while ignorance is not a legal defense, it's a good factual defense, and the prosecution needs stronger evidence (than just to get past the threshold of the law) to get the jury not to buy that story as credible.  This evidence they decided they didn't have.

But it's not because Jr. is too dumb to know better.  If that were the case, our prisons would be empty.  As my Crim Law professor said: "They don't catch the smart ones."

Nate Silver conveniently provides an example of what I mean:

Rupar may think it an odd and unnecessary analogy, but "beyond a reasonable doubt" has to take account of such "unreasonable doubt" as Silver presents here.  In a jury trial it's all about the narrative, and if you can't present the compelling, even overwhelming, narrative, you end up with O.J. Simpson walking away free.

Watch the details, not the headline.

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