Friday, February 12, 2021

Of Mice and Mens Rea

Nikki Haley is not talking about a legal defense of Trump; and she pretty much abandons that position after the January 6 insurrection, later in the article (which covers at least two interviews). But Ben Ginsberg, who should know better, seems to think that's what mens rea means, and I've seen other "arguments" that if Trump believed the bullshit he spewed, then maybe he's not criminally liable.

Bullshit.

Ginsberg said that Trump and his aides would likely be called to testify in Georgia, and now they couldn't use executive privilege as a shield to prevent them from delivering evidence.

"Part of the criminal charges that will be brought before a grand jury is his intent, his state of mind," Ginsberg said. "There's only one way to get at that evidence, and that's to depose the former president of the United States. That would not be a pleasing occurrence, I suspect, for Donald Trump. But he's under the grasp of the grand jury."

Any random viewer of TeeVee cop shows knows Trump doesn't have to testify before the grand jury because of the 5th Amendment.  Ginsberg should know the prosecution doesn't have to have Trump's own words in order to establish "intent" or mens rea.  Your average TeeVee viewer may think the prosecution has to establish "motive," but that's a murder mystery term, not a legal one.  Mens rea can be established by evidence other than the testimony of the accused, otherwise no one would ever be convicted of a crime in America (5th Amendment, again).  And while believing you were justified in your actions may be a defense to murder (you are still convicted, just sentenced to an asylum rather than a prison.  Anyone that deluded is a danger to society.), it's not a defense to other crimes. Otherwise, again, to put it simply, no one would ever go to jail. As for grand jury testimony, DA's don't want the accused brought before a grand jury.  Those proceedings are sealed, and questioning the suspect would give away a great deal of the prosecution's strategy.

It's Ms. Haberman's observations I find most trenchant here, because they cut to the quick of any defense that Trump "didn't know what he was doing" or, worse, "believed he was right."  It's a doting parent protecting their errant child from responsibility.  You don't need a law degree to see how that "defense" fails to establish an exculpatory mens rea.  Babies may be innocent of vicious intent (that's a theological/philosophical question, ultimately); but 70 year old men?

Only if you think they are babies.

(And since this post is going to bring up the matter of Nikki Haley and an interview that will pretty much end her political career (more on that a bit later), I have to add this:

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