Interesting article in Canada's National Post today. It states that prosecutors will have a difficult time because they have to prove "mens rea" - a "guilty mind" or criminal intent. What if the defense argues that Trump was truly convinced that the election was stolen and there was vast voter fraud? How then do you prove criminal intent? Are there any emails or voice recordings of Trump that indicate that he admitted defeat and was trying to overturn the result? He's been pretty consistent in his claims of voter fraud. Even if those claims were all lies, unless there is contrary evidence then criminal intent could be very hard to prove.
As I see it, a lot of the media coverage concerning the intent issue is misleading.
Hypothetically, let's assume Trump truly believed the election was stolen and there was vast voter fraud (let's call this "the Easter Bunny"). His belief in the Easter Bunny would not give him legal immunity to knowingly and intentionally commit crimes to counter the fraud he believed had happened.
I've seen commentary from lawyers that goes the other way on this issue. Some do not appear to be biased in favor of Trump. In other words, I can't say with certainty that my interpretation of this issue is correct.
Granted, the government's case is stronger if the prosecutor can convince a jury that Trump's motive was corrupt.
Trump's lawyer has been floating the Easter Bunny defense:
>>>Barely hours after Donald Trump was indicted . . . his defense lawyer [Lauro] . . . said prosecutors cannot prove Trump truly “believed” he’d lost his 2020 presidential reelection, ensuring a not-guilty verdict.
That’s gotten lots of attention,
most of it appropriately dismissive.<<<(emphasis added)
Trump's lawyer (Lauro) also floated the advice of counsel defense:
>>>[Lauro] declared that Trump merely acted on what he thought was reasonable advice from his lawyer, John Eastman.
“He had advice of counsel, a very detailed memorandum from a constitutional expert,” Lauro said of Trump and Eastman. Lauro argued this convinced Trump that he could reasonably ask Vice President Mike Pence to halt Congress’s count of presidential electors to allow states to revisit voting irregularities.<<<
The advice of counsel defense strikes me as being somewhat more likely to get traction in court, but I'm skeptical that this would be successful. For one thing, it would more than likely waive attorney-client privilege:
>>>Invoking an advice-of-counsel defense typically waives the attorney-client privilege. Courts often invoke the principle of fairness and the sword/shield analogy when discussing privilege waiver. Judges view it as unfair for a party, on the one hand, to use privileged information as a sword in advocating a position or invoking the advice-of-counsel defense while, on the other hand, claiming privilege in withholding that same information from a discovery request.<<<
President Trump’s tweet holds lessons about invoking an advice-of-counsel defense.
www.americanbar.org
If all of the communications between Trump and Eastman were to be entered as evidence, I'm willing to bet it would include statements by Eastman to the effect that his legal theory was weak, untested, etc. which would undermine Trump's defense.
