I'm honestly wondering (because there is probably case law out there on the point) if it changes the analysis if the hypothetical is that Trump claimed he was a Sovereign Citizen and so not subject to the laws of Georgia (or the U.S.), and so could ask Raffensperger to find the votes because as an SovCit he was entitled to them?
Nobody in this string believe this, of course. I'm simply saying that if you place the entire GA call in a background context where Trump, surrounded by attorneys and advisors, truly believes he won GA, then proving guilt beyond a reasonable doubt becomes extremely difficult.— Randall Eliason (@RDEliason) June 20, 2022
Tuesday, June 21, 2022
Nobody Believes This, But Still, It Could Happen!
I'm well aware of the basic dictum of law: "change the facts, change the outcome." But is this so radical a change of facts that it requires a different outcome? Because, so far as I know, the "Sovereign Citizen" defense has not been recognized as a defense against criminal charges in any court in the land. For obvious reasons. And if that doesn't work, why does the "I really believed I'd been cheated" defense work?
Maybe Trump truly believes he won GA. That issue (that he was cheated) has to be addressed in a court of law, not in leaning on a state official via the imprimatur of the office of POTUS. Seems to me that's the pertinent legal analysis. Just because you think you were cheated, doesn't allow you to resort to extra-judicial remedies.
Consider: if I believe justice was not done and the alleged murderer of my child (hypothetically; my child is alive and well and in no particular threat of being murdered) was not convicted, I don't have the extra-judicial remedy of gunning the defendant down as he/she walks from the courtroom. Or, in the more common use of "cheated," what if I had a business deal that went bad, and I was convinced the otehr party cheated me, but the fraud case I brought failed? Can I shoot the cheater because I say he cheated? Can I rob him to get my money back? What does that have to do with the rule of law? (Granted, a jury might let me off for shooting the murderer of my child, but that's jury nullification, because by law, the deceased was not the murderer of my child. That was just my belief.)
The first insanity defense was the Rule in M'Nagthen's case, where M'Naghten thought he was acting in self-defense (it's the same rule keeping the "Madman" in jail in the movie "The Madman and the Professor," if you're wondering or know the movie. If you don't, it's pretty good and worth your time.). He was demented, but still acted on what he thought was true, and in self-defense. This impinged on the mens rea of the crime; but it didn't exonerate the murderer. M'Naghten was wrong to think his life was in danger, and wrong to kill. He just wasn't guilty of intentionally committing murder; and he couldn't really be exonerated on grounds of self-defense.
Is Trump equally not quilty of a criminal conspiracy because he didn't think his actions were criminal? He'd have to prove he was as deluded as M'Naghten (who was as mad as a bag of bees). And then he'd have to show that defense was allowed for this crime.
I still don't see him getting there; but never say never. And all it really means is: the prosecution has the same burden as ever: build a really good case.
Posted by Rmj at 8:23 AM