"But What Was The...Motive?"

Many Republican lawmakers have supported Donald Trump’s false claims of voter fraud. Legislators’ actions on January 6th will be the true test of their commitment to democracy. https://t.co/7BfPtYtPFn

— The New Yorker (@NewYorker) January 4, 2021

 I realize I'm about to get into an argument with a Harvard Law professor, but so be it.

Prosecutors frequently indict criminal defendants based on far less direct evidence. But a possible stumbling block, as with many potential criminal charges against Trump, is the need for prosecutors to establish the required mens rea—they must show that, in the call, Trump was “knowingly and willfully” proposing to defraud voters, and that he knew the ballots he was telling Georgia officials to “find” and “recalculate” would indeed be “false, fictitious, or fraudulent.” Trump’s troubling mental state and habitual mendacity may well have coalesced and crescendoed to erode any discernible boundary between falsehood and delusion. It’s plausible Trump believes that he really won, or would have won but for fraud. The fact that Trump spoke not in secret but openly, with lawyers and his chief of staff on the call, may suggest that, in his own mind, he was demanding redress of fraud rather than pushing for it. It’s unlikely, though not out of the question, that Georgia prosecutors will have the will to pursue Trump under state law, which makes it a crime when a person “solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage” in election fraud; similar issues regarding Trump’s mens rea would arise in both state and federal prosecutions.

On the question of a prosecution in Georgia, that could happen:

In a statement to WSB-TV, Willis said she found reports about Trump's call with Raffensperger "disturbing." The DA, who took office on Friday, reinforced a previous commitment to "enforce the law without fear or favor" and said once the secretary of state's elections division completes an investigation, her office will handle the matter "based on the facts and the law."

"Anyone who commits a felony violation of Georgia law in my jurisdiction will be held accountable," Willis said.

So this issue of mens rea may come up in a state proceeding.  The professor goes on to argue that a Justice Department pursuit of Trump on this issue is a poisoned chalice, as it keeps alive the fraudulent election charges and "mires" the Biden administration in the pursuit of Trump.  Well, maybe.  Biden really doesn't have the option of "looking forward" the way Obama did about W.  The idea, in fact, seems not only quaint, now, but absolutely foolhardy and as destructive to the rule of law as Trump has already been.  Maybe Biden didn't run to be the President who cleansed the blot from the escutcheon of the nation, but then again, what President does get the agenda they wanted?  He represents us, not his legacy or ambitions.  We already had that national failure in spades, and we're trying to get him the hell out of the office.  We don't need his "mini-me" in the guise of the opposition party.

But back to mens rea.  Yes, criminal acts require criminal intent, but what is being described here is terribly close to the M'Naghten rule (there were 4, if memory serves, distinct insanity defenses in common law, starting with the Rule in M'Naghten's case.  I've honestly forgotten what the other 3 are, but I never practiced criminal law and I haven't practiced law in almost 3 decades, so who cares?).  The M'Nagthen rule arose from a case where the defendant, due to mental illness or infirmity, developed a conviction that the victim he eventually murdered intended to murder him.  His actions, in other words, while utterly unfounded, were based in his perception of a matter of self defense.  He could not be convicted of murder because he lacked the guilty mind (mens rea) to form the criminal intent to kill.  But neither was he let off to wander freely in the world, continuing to act on his murderous delusions.  (If you catch "The Professor and the Madman" on Netflix, about the editor of the OED and the asylum inmate who helped him with the effort, you'll see this rule in effect.  Suffering from what today we'd probably call paranoid schizophrenia, the inmate (I've forgotten names and am too lazy to look them up) attacks a man on the street, convinced that man is the "stalker" (again, our modern term) who means to kill him.  He winds up in a 19th century British asylum, based on the rule in M'Naghten's case.).

So could Trump plead insanity as a defense against a fraud claim?  Well, his counsel could try.  But would Trump tolerate it?  A defense that he was too stupid to understand what he was saying, or too deluded?  That's the practical issue.  I don't see Trump allowing his counsel to raise that defense.  Would it work?  Would the court allow it, or overturn the criminal conviction on appeal on that basis?  Again, I don't see it.  The problem here is not the M'Naghten rule, but the idea that someone so deluded about reality could not commit fraud.  It's rather akin to saying I didn't know it was illegal, therefore I can't have broken the law.  Trump, the argument would run, didn't know his statements were impossible and contrary to reality, therefore he wasn't making false claims he meant for someone to rely on to their detriment (the basic elements of fraud).  But how do you know he didn't know?  Because he is that stupid?  Because he is that deluded? Because he is that damaged?  Again:  maybe.  But if he can function, if he is just willing himself to believe nonsense because he can't face the reality of his situation, is that a legal defense?  Does that negate mens rea?  His intent was not to commit a crime, but to correct one?  Correct one by pressuring a public official to commit one?  The "madman" in the OED story (it's historical) suffered from severe trauma during the American Civil War.  Trump's trauma is that he lost an election.  I really want to see the defense counsel weaving a narrative of Trump's "madness" from that source material.  Maybe he could bring in the "feelings" of the 70 million Americans apparently grieved that their candidate lost.  Like it's the first time in history that's ever happened.

I don't think even a freshman prosecutor would have much trouble shredding that defense, before a jury or an appellate court.  Mens rea can be inferred from actions; we don't need a confession of the defendant to establish it (otherwise the 5th Amendment would keep any criminal prosecution from moving to conviction).  If I'm driving down the road and look down at my radio as little Suzy dashes out into the street, I'm guilty of manslaughter (let's say).  But if witnesses say I was watching the road carefully and did nothing to break my speed as little Suzy headed from the sidewalk into the street, my intent can be inferred from my actions.  I might say I was confused as to what was going to happen, that I even believed little Suzy was not real but a figment of my imagination.  I rather doubt the court would release me on the grounds the prosecution had failed to refute my claim I didn't have the mens rea for murder.

I mean, I think it's an arguable point.  But I'd never assert it as a reason not to investigate the situation.  As a prosecutor I would have to consider how I proved mens rea (in TV shows they call it "motive," but there's no such animal in criminal law), but wondering if the defendant was that stupid or that deluded wouldn't (shouldn't) slow me down all that much.  If it did, there'd a a lot of criminal cases falling by the wayside in a very short order.