I Sometimes Wonder What Popehat Is Thinking

You saw this again and again in the Mueller report. Whether Trump fired Comey to hamstring the Russia investigation or whether he did it because he just didn’t like the guy speaks directly to his potential criminal exposure.

— Quinta Jurecic (@qjurecic) June 12, 2022

People often confuse requirements for criminal culpability w standards by which to evaluate moral/political accountability. The difficulty of proving corrupt intent shouldn’t let Trump off the hook, unless we accept DOJ as the arbiter of moral acceptability (which we shouldn’t)

— Quinta Jurecic (@qjurecic) June 12, 2022

Because this entire thread, a portion of which Popehat retweeted, belongs on "Bad Legal Twitter." Mostly because it violates what's become the first rule of this blog in discussing criminal cases: 

KNOW WHAT THE HELL 'MENS REA' MEANS!

This thread doesn't come anywhere close to that standard.

The old joke defense to statutory rape is:  "She looked 16!"  The old saw about criminal law is "Ignorance of the law is no excuse."  Neither of those is precisely a legal standard, but they do well enough for our discussion.  You can't get out of a statutory rape charge by saying you thought the young lady was of age, when she wasn't.  And you can't get out a criminal charge with the George Constanza defense:  "Was that wrong?  'Cause, I gotta tell you, I'm a little unclear about this whole good/bad thing."

White collar criminals are less likely to go to jail than robbers and rapists not because they don't display the proper mens rea, but because the crimes are more inchoate (financial fraud, tax fraud, etc.), and the top guy tends not to be in the room. 

The criminal investigation into Trump's company stalled with the finance guy (by all reports, anyway).  The problem was not that there wasn't criminality shown, or that the criminal actions weren't done knowingly (knowing what they were doing is the standard.  It doesn't matter if they knew what they were doing was illegal and that's why they were doing it.).  The problem was connecting Trump personally to those actions by his company.  It's not enough to say Trump's reputation was for micro-management of every aspect of his company's business.  A solid nexus between Trump and the criminal action has to be shown.  If he knew what was going on, and what was going on was criminal, that's enough. (I’ll amend that to clarify: tax cases abound with defenses that the taxpayer thought his claims were valid. They still lose when the court disagrees.)

But it's harder to establish that than to establish the guy in the security video with the gun on the poor shnuck behind the counter is also the guy sitting at the defense table.  The intent of the guy with the gun on the screen is pretty clear; if that's the same guy at the table, game over.

Ideally, anyway.  Nothing in law is quite that simple, except when you have ineffective counsel.

Trump won't skate on charges that could arise from what he did to stay in office, up to and including charges of seditious conspiracy (they still seem the most likely.  I think DOJ is warming up with Proud Boys and Oath Keepers.  OCICBW.) because he'll argue that when the President does it, it's legal; or that at least that's what he thought.  His public defense is that there was fraud and that justified him doing anything in his Presidential power to overcome it.  That's not a legal defense at all.  The public perception (among some) is that such a defense overcomes a showing of mens rea for conspiracy or any other crime Trump can be charged with.  Again: not the way it works.

Trump did everything in his power to prove fraud in 60+ state and federal cases.  He lost all of them.  That ended the hunt for fraud that would allow him to claim electoral victory ( see the “tax cheat” who thought his dodge was “legal”).  Everything he did after that was potentially a criminal act or acts, and he clearly did all of that intentionally, not negligently or while in a coma or sleep-walking or otherwise unaware of his efforts and his goals.  Intent is going to be the least problem DOJ has in prosecuting Trump.

Far more serious is the lone Senator at Andrew Johnson's impeachmnent-problem.  The one who reportedly didn't vote for removal because he didn't think it was the right thing to do.  We don't prosecute ex-Presidents in this country.  We've never had to.  What if a juror decides Trump is guilty, but he shouldn't be convicted because the US is not a banana republic?

That's a far more serious concern.  It's also why it's good to let the House Committee lay the groundwork for a first-in-our-history criminal prosecution of an ex-President.  The more transparent we are about this, the harder it is to call it a "political trial."

Because that's the real landmine we as a nation have to avoid stepping on.