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Drudge Retort: The Other Side of the News
Tuesday, June 21, 2022

With the latest Jan. 6 congressional hearings focusing on what then-President Trump's closest advisers and associates told him -- that there was no fraud in the 2020 elections and that Vice President Pence did not have legal authority to refuse to count Electoral College votes -- many observers are (once again) speculating about Trump's potential criminal liability.

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...Make no mistake, no responsible Justice Department prosecutor would restrict her analysis to the law and the facts when deciding whether to bring any criminal case, let alone one against a former president. Considerations of the public interest will regularly counsel against a prosecution, even when the elements of an offense can be proved beyond a reasonable doubt.

But a foundational premise for those calling for criminal charges against Trump is that the law and facts support such charges. And assessing that premise requires an understanding of the relevant law, including the doctrine of "willful blindness."

The precise proof the government would need to convict the former president of offenses such as obstruction of Congress, seditious conspiracy, and conspiracy to defraud the United States would vary by statute. But at the heart of each charge would be an obligation to prove mens rea -- a guilty mind. Criminal defendants usually don't need to know that they are violating a particular law; "ignorance of the law" is rarely a defense. But, save in a restricted class of cases not relevant here, they do need to know they are doing something wrong, or at least have knowledge of facts that make their conduct wrongful. As the Supreme Court noted in Elonis v. United States: "The central thought' is that a defendant must be blameworthy in mind' before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like."

In United States v. Staples, for example, the defendant was charged with illegally possessing a machine gun, and the Supreme Court held that the government had to prove that the defendant actually knew the characteristics of the weapon he possessed. It was not enough to show he simply knew he had a gun because, in the U.S. at least, one can know that and still fairly believe one's actions are "entirely innocent." It's knowing you have a machine gun that puts you on notice and satisfies the mens rea requirement....



#1 | Posted by LampLighter at 2022-06-21 01:05 PM | Reply

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Drudge Retort