For this weekend’s blog post, I’ll answer questions about Trump’s third indictment. If you want to start with a summary and analysis of the indictment, see this post.
Question #1: Major outlets are reporting that the allegations against Trump require proof of Trump’s state of mind, specifically, that he knew he lost the election, but pursued his various criminal acts anyway.
Nope. This is mostly wrong, but I totally understand why so many people are confused. This stuff can trip up first-year law students.
Before I get started with legal terms, think of it this way: Trump’s motive for committing the crime doesn’t matter because a good motive does not get a person off the hook for committing a crime. “I hit my neighbor with a baseball bat because I genuinely believed he robbed my house” will not fly. I can genuinely believe my neighbor doesn’t have the right to vote, but that doesn’t allow me to go into her mailbox, steal her ballot, and tear it up.
If I think I have been the victim of a crime or there has been injustice, I have the right to pursue legal means. I can call the police. I can file a lawsuit. I cannot take it upon myself to be a vigilante.
That doesn’t mean the prosecution does not have to prove state of mind. They do. But they don’t have to prove that Trump knew he lied about election fraud.
Okay. It’s time for Criminal Law 101. Take out your notebooks 🤓 and let’s begin.
All crimes have an actus reus (conduct) and a mens rea (intent) component. (There are rare exceptions called strict liability crimes.) The actus rea requirement prevents us from criminalizing thoughts. The mens rea requirement prevents us from criminalizing accidents. Different crimes have different mens rea requirements.
Now let’s look at the crimes Trump was charged with.
18 USC 1512(c) (2): Obstruction of an Official Proceeding, and Attempt to Obstruct an Official Proceeding
18 USC 1512 (c) is a variation of what is called a specific intent crime, as opposed to a general intent crime.
To prove a general intent crime, the prosecution only needs to prove that the person intended to commit the action. Battery is an example of a general intent crime.
Hypothetical:
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- Person A steps on Person B’s toe.
- Person A gets arrested for battery
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Because this is a general intent crime, one way to negate the mens rea requirement would be to show that Person A stepped on Person B’s toe because someone shoved him, and thus he never intended to step on a toe.
To prove a specific intent crime, the government has to prove an actual intent to perform the act along with the intention for the consequence resulting from that act. Burglary (entry into a building illegally with intent to commit a crime) is a specific intent crime. Burglary requires entering a building or dwelling for the purpose of committing a crime.
Hypothetical:
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- Person A goes to a stranger’s house when nobody is home. He opens the door and goes in.
Because burglary is a specific intent crime, the prosecution has to show that the person (1) entered the home and (2) had the intention of committing a crime.
But Teri! How do you prove what someone intended? How can the jury know what was in a defendant’s mind?
Intention is generally proven through circumstantial evidence. If it was not possible to prove intent from circumstantial evidence, the only way to convict a person would be if that person confessed — and even that is problematic because what if the confession was coerced or the person is a pathological liar and will confess to anything?
Possibility #1: Person A enters someone else’s house. In Person A’s pocket is an invitation to the neighbor’s house with a note that says, “The door is open. Come on in! We will be in the backyard.” Person A explains that he got the address wrong and thus didn’t enter with an intent to commit a crime.
Possibility #2: Person A has, in his pocket, tools for picking the lock on a safe. (This guy is in trouble.)
Here is an example of a crime (and criminal intent) proven through circumstantial evidence: Someone ate my lunch when I wasn’t looking. Although there were no eyewitnesses, there were crumbs on the table and the floor, and a chair had been left out giving JJ access to the table.
I took the photo shortly after the crime was committed so I have a timestamp that the suspect was in the vicinity of the crime scene–and no other suspects were in the house. I’ll add that this suspect also has a history of committing (and attempting to commit) this particular crime. Regarding mens rea: JJ is a dog, but capable of forming criminal intent. The evidence: he waits until nobody is looking before trying to get on top of tables. Consciousness of guilt!! (I know my readers will come to JJ’s defense, but I am quite certain that I could persuade an impartial jury to convict.)
The mens rea requirement for 1512(c)
The mens rea requirement for § 1512(c) is given here. This crime requires an intent to achieve specific results. The example offered is that a defendant accused of witness intimidation has to show that the person actually intended to affect the witness’s behavior.
This means that to meet the mens rea requirement for 1512(c), the government has to show that Trump intended to interfere with the Congressional proceeding on January 6. It doesn’t matter why he did it. It doesn’t matter if he did it because he sincerely thought he won the election and Biden lost. What matters is that he intended to disrupt the business of Congress.
Here are some hypotheticals to illustrate:
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- A visitor at the Capitol who is a little bit ditzy sees a red switch on the wall and doesn’t understand that it is a fire alarm. The person thinks, “I wonder what this does?” He pulls the switch and sets off the fire alarm. All of the members of Congress run out of the building. (This person did not have the requisite intent for conviction under 1512(c)).
- A person genuinely believes that Congress is engaging in an activity that is unconstitutional so he sneaks into the building and sets off the fire alarm. The members of Congress run out of the building. (He did have the requisite intent.)
There is lots of evidence offered in the indictment that Trump intended to interrupt the workings of Congress. The DOJ secured text messages, emails, and the contents of private phone calls demonstrating that Trump knew Congress was poised to certify the election and declare Biden the winner–and at the very least, Trump wanted to interrupt and delay the proceedings. Without this direct evidence, we would have to make assumptions from his behavior. But the DOJ has secured private correspondence that amounts to confessions and contemporaneous statements by eyewitnesses.
The president has no role in counting votes, tabulating votes, selecting electors, certifying electors, or certifying the election. This is up to the states and Congress. Even if Trump didn’t understand the meaning of separation of powers and genuinely believed it was the president’s job to correct the errors made by Congress, it wouldn’t matter. All the government has to show was that he intended to interrupt the workings of Congress. Similarly, it doesn’t matter why he tried to pressure Pence into rejecting the electoral votes. It doesn’t matter why he approved the memo to appoint an alternate slate of electors. It only matters that he did these things with the intention to disrupt the January 6 proceeding.
In fact, Trump’s defense is actually an admission. If Trump says, “I tried to get Pence to throw out the electoral votes because I sincerely believed I won the election,” he admitted that he tried to get Pence to throw out electoral votes, which is an admission of the mens rea requirement for conviction.
For Trump not to have the requisite mens rea he’d have to say, “I was totally cool with Congress certifying the election for Joe Biden. Who said I wasn’t cool with that?” (And everyone would roll on the floor laughing.)
18 USC 1512(k): Conspiracy to Obstruct an Official Proceeding (The attempt to interfere with the January 6 counting of votes).
This is a conspiracy statute. The allegation is that Trump conspired with others to interfere in the counting of votes on January 6.
To meet the mens rea requirement, the government has to prove that Trump intended to enter the conspiracy to stop the counting of votes and that someone took a step in furtherance of that conspiracy. (Again, it doesn’t matter why he did it, but he had to intend for the conspiracy to disrupt Congress.)
18 U.S. Code § 241: Conspiracy against rights
This statute makes it unlawful for two or more persons to agree to injure, threaten, or intimidate a person in the United States in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States or because of his or her having exercised such a right.
So the prosecution has to show that Trump intended for some votes not to be counted. Again, it doesn’t matter if he genuinely believed the votes were not legitimate. (It isn’t his job to decide. We have democratic and legal processes for counting the votes and testing the legality.)
The allegation is that, in bypassing those legal routes, he was conspiring to deprive voters of their legal rights.
18 USC 371 Conspiracy to defraud the United States).
This is a fraud statute, and defrauding someone requires knowing that you are defrauding them.
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- to defraud,
- to make false statements or representations to the government or its agencies in order to obtain the property of the government, or
- that the defendant performed acts or made statements that he/she knew to be false, fraudulent or deceitful to a government agency which disrupted the functions of the agency or of the government. It is sufficient for the government to prove that the defendant knew the statements were false or fraudulent when made.
The government does not have to show that Trump knew he lost the election, but they do have to show something like this:
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- He knew that the alternate slates of electors were not the ones selected according to existing law.
- He knew that he wasn’t supposed to be strongarming Pence into voting in a way that Pence didn’t want to vote.
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This can also be done by showing that Trump knew there was no fraud (and there is tons of evidence that he knew there was no fraud) but the DOJ is not required to show that in order to secure convictions on each of the counts. There are other ways.
Question #2: Why, then, does the indictment make so much fuss about the fact that Trump knew he was lying?
This is a speaking indictment, which means the DOJ wants everyone to know the truth. The fact that there is so much overwhelming evidence that Trump knew he was lying, he knew he lost, and he knew there was no outcome-determining fraud is important for the country to know.
In other words, Trump’s motive—that he wanted to overturn the election and stay in power even though he lost—should matter very much to American voters.
Question #3: I read the transcript of Trump’s January 6 speech and it looked to my non-expert eyes like it met the Brandenburg test of being directed to inciting imminent lawless action and likely to do so. Why wasn’t he charged with inciting an insurrection?
First, some background. Here is what the question is about:
On January 6, when people were calling for Trump’s immediate arrest on the grounds that he obviously incited an insurrection, here was basically what we knew:
On December 19, 2020, Trump summoned supporters to D.C. with his “Be there, will be wild” Tweet.
During Trump’s January 6 speech on the Ellipse, he told the crowd: “If you don’t fight like hell, you’re not going to have a country anymore.” Then, perfectly timed for when Congress was scheduled to certify the election, Trump directed his protesters to the Capitol and said he would accompany them.
Reporting at the time of Trump’s second impeachment told us basically that about 50 minutes into Trump’s speech, some of his supporters began heading toward the Capitol where “unprecedented mayhem ensued.”
Legal scholars at the time debated whether “be there, will be wild” and “fight like hell” was legally sufficient to prove that Trump incited violence given the difficult hurdle for proving that speech incited an insurrection under the Brandenburg test. Given what we knew on January 6, it looked like Trump’s speech did incite the violence, but it would have been a difficult argument, and Trump would have been able to offer a First Amendment defense.
Over time, it became clear from DOJ filings that the paramilitaries that led the attack on the Capitol (1) were not at the Ellipse when Trump gave his speech; they skipped the rally and went straight to the Capitol, (2) they came prepared for military action on January 6, and (3) they did much to rile the crowds after Trump sent them to the Capitol.
In other words, had the government gone with “his speech incited the riot” theory, the defense would have offered evidence that the people who planned and carried out the violence were not at the speech and didn’t hear the speech. See the problem? The standard “beyond a reasonable doubt” is a difficult standard to meet. If the people who planned and carried out the violence were not at the speech and had their plan in place beforehand, the prosecution would have been left feeling stupid.
Trump would love for this trial to be about his First Amendment right. Given that the Indictment says this, I suspect the DOJ is happy that they are able to bring charges for which he doesn’t have a First Amendment defense:
Question #4: What are the implications of the DOJ’s choice to describe Trump’s role on January 6 as “exploiting” rather than “inciting” the violence?
The DOJ is taking care to allege only what they can prove. (This is what they are supposed to do, according to the guidelines.)
Question #5: Can charges at this point be dropped? I expect his lawyers and Republican Party to push for at least some of the charges to be dropped as a goodwill appeasement
This will not happen.
Question #6: Why weren’t the Members of Congress charged with a crime? They voted to delay the proceedings. There were many who voted against certifying the correct slate of electors, and thereby engaged in the fraud.
Members of Congress vote on the wrong side of things all the time. If this were criminalized, you would have the DOJ scrutinizing the motives for each vote cast by a member of Congress and bringing charges if their motives were corrupt. See the problem? Check out this example of Democrats in Congress objecting to Ohio’s electoral votes.
I maintain that to charge a member of Congress with a crime, you need more than a member of Congress voting a particular way.
Question #7: Why wasn’t ___ charged?
When Jack Smith delivered his brief remarks after Trump’s indictment, he said, “our investigation of other individuals continues.”
Because we don’t know what evidence the DOJ has (there can be exculpatory evidence about people that we don’t know about) and because we don’t know who is cooperating, all we can do is wait and see.
I do, however, expect the 6 unindicted co-conspirators to be indicted. (But I cannot say for sure that they will, of course.)
Question #8: The fake elector scheme was detailed for every state except Nevada. Why do you think that is?
I have no idea. An indictment doesn’t have to (and in fact, really can’t) contain all the evidence. The DOJ decides which facts to include.
Question #9: Will any of these charges keep him from holding office?
I don’t see any of the crimes under which Trump was charged invoking section 3 of the 14th Amendment clause that says:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
I also don’t think it matters. If enough American voters would vote for Trump to put him back in the White House after being presented with all of this evidence that he tried to overturn the election and stay in power, a clause in the Constitution will not save us.
#10: Would Trump’s badmouthing DC get him a change of venue because DC jurors can’t be impartial — cuz he badmouthed their city?
If this worked, any defendant would be able to get a change of venue by badmouthing the place. A defendant’s bad behavior should never be used to benefit the defendant. If Trump wants to make all the jurors hate him, that’s his right. Generally insulting the jury is not a good idea [understatement].
Question #11: Will it be a strong defense for Trump to say that he relied on his lawyers’ advice?
Sort of interesting that six of his own lawyers are co-conspirators.
I don’t see how an “I relied on my lawyers” defense will help him. He had enough lawyers giving him good advice, and he ignored it. He ignored White House counsel and followed the advice of someone he privately admitted was putting forward “crazy” ideas. He clearly made his own choices about who to listen to.
If he tries to blame his lawyers, 6 of whom are unindicted co-conspirators, you have a situation of defendants and potential defendants pointing their fingers at each other, a lovely situation for the prosecutors.
Question #12: What is the likelihood that Trump will be convicted?
Here is how you know Trump is likely to be convicted on these charges: He and his supporters are already making a lot of noise about how it would not be possible for Trump to get a fair trial in Washington, D.C. because the jurors will be biased against him. His judge has been tough with January 6 insurrectionists. She is not sympathetic to Trump.
I didn’t get to all of the questions, but this was long enough, doncha think?
Some Drama Yesterday
Trump posted something unhinged on Social Media (“IF YOU COME AFTER ME, I’M COMING AFTER YOU” and Smith’s team gave a pitch-perfect response. For my analysis, click here (it’s on Mastodon).
Look at all of these criminal indictments since leaving office! Trump is setting some kind of record. It’s incredible. Believe me, nobody gets indicted better than Trump. People are saying that he’s the best at getting indicted. That loser Obama never even got indicted once. Even Hillary Clinton couldn’t manage it. But here is Trump, winning with all of these bigly and huge indictments.