1512, 241; 54 40 Or Fight!

And as for 1512, Imma keep linking to this goddamned Royce Lamberth doc until you either read it or he starts charging me. https://t.co/QUJNEr2DMd

— emptywheel (@emptywheel) August 3, 2023

Let’s start with this. There’s some reading involved, but the Lamberth document gives a clear example both of finding a conspiracy in a set of facts, and (a bit further on), of how mens rea is established. Both are useful for assessing all the bafflegab about Trump believing in his lies like a little girl believing her applause revived Tinkerbelle,

If you read the opinion, you’ll see the use of “knowingly,” as in “knowingly entered into a conspiracy.” That isn’t mens rea, that’s just that he knew he was entering into this agreement (he acted willfully, not accidentally). Mens rea goes to the question of acting corruptly, which is an element of 1512 (obstructing an official function).

Here's the nutty thing: We don't know how "corrupt purpose" will be defined by the time Trump goes to trial. The DC Circuit is AS WE SPEAK trying to figure that out (Robertson, look it up), and a defense attorney is trying to preempt that by going directly to SCOTUS (Miller).

— emptywheel (@emptywheel) August 3, 2023

Following up on that:

Literally DOZENS of 1512 defendants have tried this same bullshit defense Trump claims he wants to try, including before Chutkan.

Didn't work.

— emptywheel (@emptywheel) August 3, 2023

Trump’s defense is DOA. And the question of whether Trump acted corruptly is really not a tough question. Now, if Trump’s other defense requires Trump to testify…

So it's NOT that "well, I took advice from batshit lawyers."

It's that "the lawyers and I entered into an agreement together to lie to the USG, stop the vote count, and prevent Biden's swing state votes from being counted."

— emptywheel (@emptywheel) August 3, 2023

A useful reminder that the lawyers Trump wants to say he relied on are co-conspirators. And the conspiracy is the agreement. So if he relied on their legal advice, it’s because they were part of the same conspiracy. And carrying out that conspiracy is proof of the “corruptly” element of the crime. And the evidence is pretty strong:

I mean, MY GOODNESS, the evidence that Trump and Eastman entered into an agreement to prevent Biden's swing state votes from counting?

THEY WROTE IT ALL DOWN!!!!!

— emptywheel (@emptywheel) August 3, 2023

Yes, writing is as protected as speech, but it isn’t protected when it’s the element of a crime, v. just a political opinion. And the more I think about it, the more I wonder how declaring an entire national election fraudulent, is “political speech.”

The more I think about it, the less that makes sense.