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.
It’s generally accepted that tRump lost sixty-odd cases.
But I’ve also heard that he lost one, won two, and none of the rest proceeded due to technicalities.
Can this be true?!
He lost the cases. I think he lost about 62 and one 1 (don’t recall). I am not sure what you heard, but someone was probably confused about not proceeding due to technicalities. “Technicality” is usually the word people use for “procedural.” Losing on procedural grounds is still a loss.
Thanks.
Out of the 62 he lost do you know how many were lost on procedural grounds, and in how many tRump was proved to have lost the election fairly?
At this point, I honestly have no idea what you mean by “procedural grounds.” You need google for the cases, read them, and see why he lost.
Sorry, perhaps I wasn’t clear?
I meant the procedural grounds you were referring to:
“He lost the cases. I think he lost about 62 and one[won?] 1 (don’t recall). I am not sure what you heard, but someone was probably confused about not proceeding due to technicalities. “Technicality” is usually the word people use for “procedural.” Losing on procedural grounds is still a loss.”
Presumably you have already “google[ed] for the cases, read them, and see[n] why he lost.”
And can help clarify this for us?
He lost on the merits. He didn’t lose because of “technical defects.”
He lost on the merits because his claims were filled with provable lies. Moreover, his lawyers have been sanctioned for bringing frivolous cases.
I will put it in simpler terms: He lost the election. In his court filings, he and his lawyers made up lies as part of an overall plan to steal the election.
It was easily proven that his lawyers lying and distorting evidence, so their cases were bounced out.
He lost on the merits. His lawyers were sanctioned for bringing frivolous appeals. He lost because when he filed the cases, his claims were filled with provable lies, so the courts bounced him out and sanctioned his lawyers.
Thanks, Teri. Super thorough and super helpful, as always.
P.S.: Like JJ, our Cooper can get up on the dining room table when someone leaves a chair out. But, perhaps UNlike JJ, Cooper can’t get down. It’s happened many times that we follow the sound of Cooper’s little bark to find him stuck atop the dining room table.
Why can’t the conspirators defend their acts as protected free speech attempting to influence third parties (Pence, senators, state legislators, alternate electors), who the conspirators mistakenly believed had the legal and moral right to act as the conspirators proposed?
If the conspirators had urged Pence to pull a fire alarm, or otherwise violate the law to stop the certification process, then the conspiracy to obstruct charge makes sense, since the intent would be to join in a plan to commit a known crime for the purpose of obstruction. But to urge someone to do what you mistakenly think they have the legal and moral right to do seems defensible to this non-lawyer. Thus, if I mistakenly believe JJ is allowed to eat from the table, there is nothing wrong with me urging JJ to go for it.
This makes me think the trial will require showing BARD that Trump and his co-conspirators knew Pence et.al. had no legal right to do what the conspirators were proposing. Which I worry will be too hard to do.
It doesn’t matter what the co-conspirators believed: men’s rea and actually rea can be proven.
How about the psych defense. If his lawyers say trump is mentally unfit. Nothing stopping a mentally unfit person from running for president and his cult will still vote for him all the while the trials are put off till he is treated.
First, thank you for this educational post.
Just once, I would like to see a concrete example of the Brandenburg standard met.
Nothing ever seems to come close to being imminent.
Is there a notable example in history where a court decided that the test passed?
This court is supposedly very pro-1A, but at some point we may have to conclude that the Brandenburg test is moot, all incitement is protected under the First Amendment. No matter how soon was the violence that followed.
Here you go: https://supreme.justia.com/cases/federal/us/340/315/
The Brandenburg Test was not devised by “this” court. It was devised by the Warren Court, one of the most liberal courts in our country’s history. That’s because it’s a liberal value not to make it too easy to imprison people for speech.
Making it easier to put people into jail for speech you don’t like is not the solution you think it is.
Thank you, Teri!
Are the 5 known co-conspirators identified in the indictment has attorney indeed Trump’s attorneys or were they rather general attorneys who were giving him advice on coup-plotting and who willingly became participants in the conspiracy? I don’t see how an advice of counsel defense could fly if they weren’t really his attorneys in the first place. And, doesn’t attorney-client privilege get discarded when an attorney is a participant in the crime? As your article mentioned, many white house lawyers advised Trump that the fake elector plot was illegal but he chose to engage with the other attorneys who were willing to conspire with him. Seems like the advice of counsel defense is a strike out let alone worthy of an effort to even try to make it to first base.
That was such a great discussion I had to share it on Twitter.
Thank you for the incredible amount of time & effort you put into these explanations!
Always happy to see JJ – such a good guy!
Teri – thank you for your clear and cogent dissection of the legal case.
My concern is – it took quite a bit of explaining, and understanding. What support will the jurors (who presumably have no legal training) have to understand the legal position?
Excellent post. Thank you.
RE: JJ (I don’t comment much about cute dogs) — you need to teach him to get up on the table when you _are_ around. Nullify the consciousness-of-guilt stuff!
Finally, your thought on a constitutional amendment (easy peasy):
Require that conviction* for any felony that involves corruptly obstructing, impeding or influencing the functioning of government disqualifies the offender from holding any office civil or military, under the United States, or under any state.
* previously taking an oath of allegiance not required
Peru has built a special prison for ex-presidents convicted of crimes, since they pose a problem for protection. I gather they currently have a problem with an unexpectedly large number of living ex-presidents who have been convicted of felonies, requiring them to enlarge the presidential prison. Do we need to start building the Presidential Penitentiary now, or will existing country club prison facilities suffice? What capacity should we plan? I believe the maximum we have had was 5 living ex-POTUS, but perhaps it is excessive to think that all 5 could be simultaneously doing time. Perhaps we should see whether Napoleon’s old digs on Saint Helena could be rented for this purpose, until we need a place to put a second one.
We have a very secure Federal one in Florence, CO. No escapes. No inter-prisoner violence. And, it’d do my heart good.
I’ve long been an advocate for his next address to be Florence, Colorado, since there is SuperMax section specifically for traitors and enemies of the United States of America. I’d bet the warden has a room and will leave the light on for him.
I favor re-opening the Isle of St. Helena as a posh retirement home for the rich and powerful. But by invitation only. You get invited if you’re an evil despot endangering other people and/or world peace. The offer gets immediately withdrawn if you lose power before you accept it. tRUmp would have had to accept it by Monday, November 2, 2020. It’s too late.
Isn’t there still a Trump Library pending? Let him build it, then put in all the banned books in there and lock him in the library.
Legal question: Now, after several threatening videos and texts posted by TFG on his social media, I am wondering how much input a defendant has in determining any changes in the status of his conditions of release?
The Judge asking for a redlined version by EOB on Monday makes it appear that the defendant can soften the terms or ask for changes that are more favorable to him. Even more of a question if the Judge is forced (by defendant’s repeatedly escalating and violating the conditions) to make the conditions harder, such as sanctioning or even detaining before trial. How much say-so does defendant have in this matter??
Thanks as ever, Teri!
See this thread: https://law-and-politics.online/@Teri_Kanefield/110843162572057841
Thank you. I assume that if TFG does reveal a witness name or any other proscribed information, the judge will strengthen the restrictions set in the conditions of release.
But my question is, can TFG argue or say, “nah—that doesn’t work for me—I refuse.” How much input into sanctions does defendant have? Heretofore, I would have guessed, none.
When there is a protective order, read it carefully so you know what is in it.
If he violates a law, it seems to me that should be a separate charge and not part if this indictment.
Ah! That makes sense, and would be a much more powerful response from the Prosecution! Thanks again!
Hi Teri! I absolutely adore your style and appreciate reading everything I can find that you write. Thank you!
The link you provided doesn’t allow a click and access immediately, or a copy and paste. Do I need to type the link into my phone? No computer access here.
While I am not a lawyer, this seems like a clear case of entrapment. Consider the evidence:
A. The delicious lunch was deliberately left on the table.
B. Access to said lunch was provided to the accused by leaving a chair out.
C. It was then made clear that no one was observing him.
D. It was even admitted that they knew his past history and that conditions A, B, and C would lead to this crime being committed.
If there is any justice the Judge would throw this case out, and consider sanctioning the prosecutor for wasting the time of the Court.
Actually, this kind of “entrapment” is how you teach JJ and his canine cousins self-control. I leave tempting things out and about, set mousetraps on them, and leave the house. Works like a charm. Same thing for jumping on the furniture.
In addition, this kind of lesson is not just for house dogs, but is an essential part of the education of seeing-eye dogs, police dogs, guard dogs, and others with advanced degrees. They have to learn to follow the rules even when there is no one there to enforce them.
Seeing-eye dogs also have to learn to use judgement and disobey orders if obedience would put their human in danger. (Horses are very good at this test, but it’s not always clear if they are protecting their human or protecting themselves.)
I’m not sure about the legal ins and outs of it, but I do think we should have at least an equal standard of behavior for humans as we have for canines.
Hope you saw the interview George Stephanopoulos did of Trump’s criminal defense lawyer, John Lauro, on ABC’s This Week, Sunday morning August 6. If so, will you please break it down and share your thoughts. I found it disturbing. And thank you for all your previous insights. I find them very enlightening.
Sorry, I don’t watch TV talk shows.
Do you really think what Trump’s defense lawyer says on TV matters?
Pay attention to facts and not the opinions of people, particularly people whose opinions don’t matter and people who you can’t trust.
Is it possible to enhance your blog software to include “likes” and other button-clicks? Logins can be avoided by allowing them one per-IP address. I’m sure this is canned software tho. ANYWAY:
dOb (a long way to say: two thumbs up for your comment)
Excellent advice!
I’ve noticed that trump now misrepresents the legal aspects of the DC case by naming it free speech rights (his) and election fraud.
The model prosecution memo by Eisen et al put more focus on the word “corruptly”, pointing to authority that they suggest indicates that the word entails both corrupt means and corrupt purpose. I’d like to read your take on that.
I haven’t read that prosecution memo, but from what you’ve said, it’s another way of saying the same thing. The word “corruptly” is in the statute and defines the mens rea requirement.
Initially, I planned to write this explainer with an emphasis on the word “corruptly” and then, instead, thought it was better to use the DOJ’s articulation of the mens rea requirement.
The problem with prosecution memos written before there is an indictment is that the writer does not have access to all the evidence. I never do it and I never read them.
Two lawyers can be equally smart and both have different ideas about how criminal acts should be charged.
The only reason it caught my attention was because the model memo cited some specific case authorites which slightly open the playing field for defense arguments. One of these authorities thr
Cueto case, seemingly reahes corrupt purpose by weighing a defendant’s DUAL purposes against each other. This invites Trunp to argue that he had dual purposes, one (corrupt) to win, and one to produce the most important truth in US history, A jury instruction navigating the possibilities might be a challenge.
The authorities cited by Eisen at all also attend to corrupt means, which should be easy fir the prosecution to satisfy . And I suspect, in the end, the fact of patently corrupt means itself help to clarify that the corrupt purpose was the dominant purpose.
(I skimmed through the comments to make certain I was not repeating something already stated.)
In terms of venue, I think it is at least a note of interest, if not something important to consider, that many of those “foot soldiers” on January 6, including the Oath Keepers and Proud Boys, have tried to get a change of venue from the D.C. court claiming they could not possibly get a fair trial in D.C. I follow these cases closely (thank you, Scott MacFarlane for CBS for your devotion to covering these cases) and none of the 100s of requests for change of venue have been granted by the D.C. court.
Thank you Teri for this. Do you think televising the trial would help dispell a lot of the misinformation?
I think there are problems with televising the trial. But I DO think that the trial should be filmed, and the films released after the verdict.
The problem in any case is certain “news” sources picking and choosing what to broadcast, like only the defense’s case, leaving out the prosecution evidence.
Thank you for this explainer on the latest indictment of TFG.
I must protest that JJ is innocent, however. Circumstantial evidence of crumbs on table and floor prove it could not have been JJ. What dog would leave any crumbs behind?
Maybe you had a window open and a pigeon or seagull came in, ate your sandwich, leaving crumbs behind. JJ said he didn’t do it and I believe him.
Yes. It’s a witch hunt. Fake news.
Couldn’t JJ plead insanity due to not being fed enough by his mean owner?
He was not responsible due to his low blood sugar content and his frontal lobes weren’t functioning properly.
Come on defense attorney
Defend your client.
The jurors will surely see his innocence.
🙂
“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.”
Ok, but with modern day communications you dont really need to be in the place, Im not saying it applies to the current subject, id be weird to say that have to hear such speech fist hand.
Another question, or more like an opinion: Why is that in USA you lose voting rights if convicted by can still be voted?
And last: Why is the cover of your novel “Lawyers dont lie” has a pacifier in it’
If you planned the violence before the speech, the speech did not cause the violence.
Ms. Kanefield, with respect, I think you are wrong regarding the evidence for Trump’s responsibility for the violence at the Capitol, because like many lawyers you are accepting Trump and the GOP’s very limited framing of the speech rather than Trump and his co-conspirator’s entire pattern of behavior. Trump didn’t incite the mob to attack the Capitol by a few words during the speech at the Ellipse- this was the last step, not the first. Trump first claimed elections were rigged against him in 2016, and then again in 2017 (the fake Election Commission headed by Kobach that ended with nothing after 3 months) and again in early 2020. Trump also had several members of his election campaign spread the Big Lie about the election being “stolen”, and acting as go-betweens to the insurrectionists. Most notably, top campaign member Roger Stone was involved with the ringleaders of the Oath Keepers and Proud Boys, now convicted of seditious conspiracy. Please note that Roger Stone was also one of the architects of the “Brooks Brothers riot” in Florida that stopped vote counting and threw Bush’s election to the Supreme Court. Now Stone tried to use the same plan to stop the Electoral Vote counting in 2020. It wasn’t a similar plan- it was the same person with the same plan, just doing it for Trump instead of Bush. (IMO, Stone needs to be indicted and tried ASAP, as he is a danger to the country and to democracy.) Meanwhile, not yet indicted co-conspirators Eastman and Guiliani were spearheading the false electoral vote part of the conspiracy. I think this was a complicated multi-step conspiracy, which is why Smith chose not to use it in the initial indictment against Trump. But it is clear that Trump incited the Jan 6th insurrection to keep himself in power long before Jan 6th 2021.
You misunderstand. I didn’t say Trump didn’t incite an insurrection.
I said there isn’t evidence beyond a reasonable doubt that his speech incited the insurrection. Much of what you say would not be admissible as evidence because it actually isn’t evidence.
Read my FAQ pages on how this all works. “We all know it’s true because of X Y and Z” will never get to a jury.
Inciting riots isn’t itself illegal. *Imminently* inciting them (or any other lawless activity) it what’s illegal. And “imminent” is construed very narrowly by the courts.
It’s not so much “did you have to hear it first hand/in person” but rather “how much time was there to reflect”.
If someone gave a live speech on TV and said “get down here right now and attack these illegitimate institutions” and a riot ensued fairly immediately, that’d likely be imminent incitement.
If someone goes on TV and says “next Wednesday at 4pm come down here and start attacking these illegitimate institutions” it likely wouldn’t be imminent incitement. (But perhaps might be some other crime depending on exact words said.)
Teri—Thank you for your precise distinctions, sharp analyses and lucid clarifications.
While the attack on the Capitol was ongoing, Trump for over three hours refused to take any measures to quell the riot. Others, including his own daughter, advised him to call of the attack, yet he refused to do so. Was this dereliction of duty and violation of his oath of office merely unethical? Or does it have legal significance with reference to any of the charges in Jack Smith’s and his team’s indictment?
While the points you make are valid ones, I personally think that Trump’s failure to call off the attack on the Capital points to his state of mind and intent. He did not call off the attack, because the attackers were doing what he wanted them to do.
It also shows the extent to which they were acting under his “control” in that as soon as he called them off, they left the capital. There is even video of people reading his post, and saying “we need to leave because Trump is telling us to.”
So you have the people attacking the Capital because they believed that Trump wanted them to do that (due to things he said), you have Trump refusing to call off the attack because they really were doing what Trump wanted them to do, and them leaving the Capital as soon as Trump told them to leave, further confirming that they were only doing what they thought Trump wanted them to do.
I think this really does show what Trump’s intent was.
Thanks as always, Teri!
I have a different question: is Trump (or indeed any defendant) required to be physically present in court throughout his trials?
I volunteer to represent the suspect referrred to as “J.J.” pro bono, which means I will not only speak on his behalf, but I will give him a bone for free.
No crime! JJ is innocent! He didn’t steal anything, because as you say, “a chair had been left out giving JJ access to the table.”
No jury would convict.
Note the use of passive voice, eliding or obscuring the agency of an unnamed enabler. This suggests a weak spot in the prosecutor’s argument.
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 – the stuff my nightmares are made of.
JJ deserves leniency…just look at him!
So true!
Should the TFG be found guilty in NY or GA (or both) and sentenced, can a state request he be transferred to a federal prison? Especially if he is also sentenced for federal crimes. I would think this would make it easier for the Secret Service to keep an eye on him.
Would each sentence run consecutively? (although some charges in each sentence could be served concurrently.)
If he is in a federal prison for state crimes could a President pardon him for the state crimes? (I would think not – President can pardon only for federal crimes).
I know that that all of this will be after the trials and a few years of appeals but I am thinking ahead of problems that we will face. He may be in his eighties and may never live long enough serve any time.
Thank you,
Mike
I was in the jail business. Maybe Teri can clarify some of these things as well.
Jailing Trump would not really be a problem. He would certainly get solitary confinement for his own protection, like Paris Hilton did in LA. Solitary is not based on the level of crime committed but on safety concerns. The secret service can watch him through CCTV. (That would have to be installed.) He can even get special access to a tablet all day long, but he won’t have access to social media. Solitary confinement is available at county, state, and federal levels. The main issue would be keeping his followers OUT. One way to increase safety would be to not let the public (or other inmates) know which facility Trump is in.
Yes, he can be transferred to another facility in another jurisdiction to serve his sentence. This is regularly done with police officers convicted of crimes, for example, who are always transferred far away to try to keep them safe from other inmates. It is also done with convicted inmates at the state level because of space. Hawaii has for years housed several of their inmates in Arizona.
This is entirely possible, I think: ” 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.”
The Constitution will not save us! Well, then, IMO, we are no longer the USA, and if it comes to pass, I will be profoundly sad about there being enough of those voters in our electorate and the loss of the rule of law in our country. The Constitution is the supreme law of the land.
Thanks so much for your explanations, Terri. Not too nerdy for me. If I had another life to live I would go to law school.
Many thanks, I was confused about the protective order and now i am not.
Entertaining too
Thank you once again Teri for your great explanations of this case (and all the others)!
And I was thinking.. what if Trump wins but is in prison? Assuming you know trial timelines, any way he’d be in custody before the election?
(Its all surreal)
What options does the Judge have to control Trumps pre-trial behavior, besides jail? Ie fines, or done how holding his lawyers to account to control their client. I think Trump would otherwise exploit being jailed pre-trial for his social media posts.
Teri. You’ll never find an impartial jury to convict JJ. After all, he has the right to confront his accuser and appear before the jury, with those innocent and lovable eyes. No jury would be impartial.
This great article, a nice cup of tea with some real good chocolate: what better way to spend some time on a Saturday night?
More so when I have the sense that Jack Smith and his very capable team will win this case.
Thank you very much for your insights and effort.
Teri, Thank You so much for your very informatinve messages. I really appreciate it!
I get such a thrill seeing my question answered by an expert such as yourself. Thanks, Teri!
Grown men are coming up to him with tears in their eyes, saying, “Sir, nobody gets indicted bettet than you…”
Oh, that’s sweet, Peter. I’m going to send it to my sister who first alerted me to when Trump says they say, “Sir”, he;s lying.
Tell your sister that when Trump says literally anything, he’s lying. And even if occasionally he tells the truth, he lies so constantly that he should never be believed, ever. If Trump says 2 plus 2 equals four, get a second opinion.
Have you ever seen anyone lose as much as Trump does in court? It’s gotta be some sort of record.
It is a record! I happened to read an article about this. When trump was president, he lost 70% of cases, and this before the election “fraud” cases were filed. Other Presidents, on average, win 70% of their cases.
Thank you for the clear explainer Teri. I have learned so much from you!
I am so thankful you are doing this analysis for us. You are awesome and very appreciated!!!
I have never seen a more criminal face than that dog. You can see the scheming in his eyes.
“I also don’t think it matters. If a decisive majority of American voters would elect Trump 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.”
This is where I have some serious concerns with respect to the amount of voter suppression going on in many of the red states. Non-partisan election commissions being replaced by partisan actors. Voter roll purges. Severe gerrymandering in the redistricting, and Alabama setting the example for defying the court directives to draw fair districts with other red states primed to follow their example.
It’s pretty clear that if every eligible voter were able to vote and have their vote counted, there’s no way the GOP would win. If the GOP can prevent enough eligible voters from voting or prevent their votes from being counted however, given the EC’s slant toward the small rural states, we could lose the election via the EC despite the popular vote, even in those red states, going the other way.
“Sort of interesting that he was indicted along with 6 of his own lawyers, right?”
Except that the six co-conspirators are as yet not indicted. They likely will be eventually, but he wasn’t indicted with them. He was conspiring with them.
“His judge has been tough with January 6 insurrectionists. She is not sympathetic to Trump.”
I’d say that’s a bit of an understatement. Her response today to Trump’s request to extend the deadline for his response to the prosecution’s request for a protective order was as perfect as Smith’s request for it in the first place. If I were to wager, I’d say that so far, with this judge, and this indictment, this is the strongest case against him yet. That’s saying something given how strong the documents case is with all of the, well, documentation.
And you’ve got a strong case to convict JJ. He should be a marked dog. But he’s so cute that I’m sure in the end he’ll skate, or possibly slide on the smooth floors as he races around frantically guarding the house from squirrels, deliveries, leaves falling, etc.
Ande, the four swing states (WI, GA, AZ and NV) will determine the EC win and which candidate wins in ’24. They are not red states. That’s why they are swing states – they could swing red or blue.
It’s only happened five times in our history that the candidate who lost the popular vote won the EC, 2016 being the latest. By all accounts, the candidate who wins the popular vote by a margin of 3-4 points also wins the EC. HRC’s margin in 2016 was 2.1%. Biden’s, in 2020, was about 4.5. Biden has to win a majority of those states to win reelection.
I recently saw a poll that in WI he’s up by 9 points. If you want to keep Trump out of office, get active in your support for Biden in the swing states! Start here: https://secure.actblue.com/donate/ads-gs-dd-bvfsearchgop-jun2023?refcode=om2023_ads_gs_230630_exmdonate_dd_us_all_actblue&gclid=CjwKCAjwt52mBhB5EiwA05YKozSPKUiT3ltGdvpYoiZ1e41-m54RsXBCIH4N6_pyokSBr_7ua-59whoCR5sQAvD_BwE.
Thank you for the link! Somehow I hadn’t heard about the Victory Fund! I just donated and also posted the link on Post.
JJ is guilty. But at least he is smart enough to wait until you’re not watching. OllieTheDog literally will steal half a bagel out of my grandson’s hand if it’s dangling within reach. (It happened a couple of days ago.)
Excellent summary and explanation of the latest indictment. Your explanations sparkle with clarity. I would say they are Swarovskian although I don’t think that’s a word. Thanks!
Thanks so much! Makes it easier to understand where we are.
Also, my pup is a thief a la JJ hahaha