Friday, June 10, 2022

Same Song, Second Verse

None are innocent. Completely spontaneous actions: In a sense: yeah, old news: Well, not all of it is "old news": All of which is to say: "intent" is not the stumbling block so many pundits and Twiteratti think it is.

If I'm driving down the road and a look at my radio just as little Suzie darts out into the street, I had no "intent' to kill her.  But I still operated by motor vehicle in a negligent manner, so I'm still criminally liable for her death.  If I gun the engine and aim for it, I'm also liable; but now my liability is not based on negligence but on my "intent."  But "negligence" is mens rea (commonly called "intent"), too.

Mens rea is just the dividing line between accident and crime.  Often someone is excused from misuse of a weapon because "it just went off!"  Which is crap; guns don't "just go off!"  But that's a way of acknowleding an accident.  What happened on January 6th, however, wasn't an accident.  It was intentional, all the way up and down.  Connecting Trump to those actions isn't a question of intent, it's a question of evidence.  Did he do the acts that would make him part of a conspiracy?  That's the question.  Did he do them knowing they were crimes?  That's not part of the charge; that's part of the defense.

And it's a weak one.

Trump, as the Committee pointed out, tried to challenge the election in over 60 cases.  His lawyers made bad legal arguments, which led to Giuliani's license being suspended.  That's on the lawyers.  Trump is not liable, civilly or criminally, for bringing cases in bad faith; or in good faith.  His lawyers are, however.

But after those cases failed, Trump kept trying.  He can claim the elction was "rigged" or a "hoax" or the "crime of the century."  That doesn't obviate a conspiracy charge.  He did not have legal authority to do what was done in Deember and January, outside the legal cases he filed.  If he engaged in a conspiracy to do what culminated on Jan. 6th, that's a crime:  EOD.  (Well, not quite, but near enough for this discussion.)  What did he know and when did he know it?  Doesn't matter.  (Baker was actually using that line to defend Nixon, not to prosecute him.)  If he was part of the conspiracy (and if there was a conspiracy), he's criminally liable.  Mens rea only matters insofar as he was part of the conspiracy.  There is evidence of consciousness of guilt in his hiding particulars from certain people.  That's pretty much all the prosecution has to show.

The defense can claim Trump was a babe in the woods or was acting in good faith.  But I can't claim the government has been taken over by space aliens and therefore I must firebomb government buildings in good faith.  Nor can Trump claim he was entitled to remain President in good faith because he didn't like the outcome of the election.

On that one issue, it really is pretty much that simple.  The tricky bits are presenting evidence of a crime, and a conspiracy, in a court of law, sufficient to convince 6 jurors (federal case) to convict.

The usual criminal hurdles, in other words.
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