The evidence is clear: it’s time to prosecute Donald Trump | Laurence H Tribe and Dennis Aftergut
On March 8, a jury took three hours to render a guilty verdict against Guy Reffitt, a January 6 insurgent. Donald Trump couldn’t be happy. DC is where Trump would stand trial for any crimes related to his admitted campaign to overturn the elections.
Jurors would have no trouble finding the evidence meets all of the statutory elements required to convict Trump, including his most difficult criminal intent to prove. That’s our goal here.
A March 3 New York Times article claimed that “[b]Mounting a criminal case against Mr. Trump is very difficult for federal prosecutors…given the heavy burden of proof… [and] questions about Mr. Trump’s mental state.
The clear implication is that Justice Department leaders may simply tread the cautious path of hesitating to charge, or even vigorously investigate, Mr. Trump. But based on the evidence already public — and there’s no doubt plenty more that isn’t yet public — no vigilant prosecutor would be deterred by the difficulty of convincing a jury of Trump’s mindset. . Full speed is now the only right road.
With respect to the intention requirement of §371, the United States Supreme Court has ruled that conspiracies to defraud the United States include conspiracies entered into “for the purpose of injuring, obstructing, or defeating the lawful functions of any department of government” using “deceit, trickery or cunning, or…means which are dishonest”.
The mental state required for §1512 is a “corrupt” intent to obstruct, influence, or interfere with an official process. In Arthur Andersen vs USAthe Supreme Court declared that “corrupt” meant “dishonest” or “dishonest, immoral, depraved or evil”.
The mountain of evidence already public would surely lead a DC jury to reject Trump’s defense that he honestly believed his own “big lie” that widespread voter fraud robbed him of victory, and therefore that his intent was innocent.
First of all, Trump knew that the More than 60 court cases seeking to nullify votes in disputed states had failed.
Second, as former Michigan US attorney Barbara McQuade said, convincingly shownfive of Trump’s top officials told him unequivocally that all of the fraud allegations were false.
Third, Georgian Secretary of State Brad Raffensperger told Trump the same thing during the infamous taped call in which Trump asked Raffensperger to “find” 11,780 votesexactly one more than needed to nullify the state election.
This call alone screams “corrupt” intent. And the thinly veiled way in which Trump threatened Raffensperger in that call reinforces Trump’s “evil” mindset.
Fourth, Trump’s speech just before the Capitol attack included a demonstrable and telling lie – that he would join the Capitol march with the crowd even though his pre-speech schedule showed no such plan and that Trump had done no such thing. A properly instructed jury would likely conclude that this lie reflected Trump’s desire to stay away from the violence he had encouraged, giving him both physical safety and plausible deniability and evidencing more of a “corrupt” state of mind. “.
Fifth, Trump failure for three hours to call off the siege after it began, despite violent television footage and pleas from his childrenadvisers and allies – despite his undoubted duty to “take care that the Laws be faithfully executed” – was manifestly “depraved”.
Sixth, when Trump belatedly called on the insurgents to return home, he called them “patriots” who should “remember this day forever”. A federal judge wrote in a Feb. 18 notice that “a reasonable observer might read this tweet as ratifying the violence and other unlawful acts that took place that day.”
Seventh, “willful ignoranceof inculpatory facts is equivalent to knowledge. Drug couriers cannot escape condemnation by choosing not to ask what was inside the package containing heroin they were handsomely paid to import. In Trump’s case, his alleged belief in election-changing voter fraud was willfully blind, to say the least, to the facts before him.
Finally, another of Trump’s planned “innocent intent” defenses – which he relied on his attorney John Eastman – would fail. Eastman has declared that it was on his advice that Trump sought to have Pence reject electoral votes for President Biden or delay the entire vote.
Far from reasonable, Eastman’s assertion that Pence was “the ultimate arbiter“of the electoral count was total”absurdity”. Trump would be unable to produce a lawyer who would support this constitutionally absurd theory and could even withstand amateur cross-examination.
A concluding point. Some observers have Express fear that a single juror supporting Trump could “suspend” the jury, suggesting that US Attorney General Merrick Garland may simply deem the risk too great to be worth taking. But as a BBC observer of Guy Reffitt’s trial Noted, each juror saw through the smoke the accused was blowing. Jurors are instructed to use their common sense, and that’s exactly what Reffitt’s jury did.
A DC jury would do the same in a trial against the central plotter. Once all the evidence has been gathered quickly, with or without the special advocate we recommendjustice must indict him.
Laurence H Tribe is Professor Emeritus of Constitutional Law at Carl M Loeb University at Harvard University. Follow him @tribelaw. Dennis Aftergut is a former federal prosecutor, currently an attorney for Lawyers Defending American Democracy