@Mr._Clark
Thanks for the discussion about the consequences of taking an advice of counsel defense with regard to waiving attorney-client privilege. All the crime shows I've seen on TV never mentioned that.
A few more thoughts in regard to the intent issue, aka The Easter Bunny …
I know from those murder mystery crime shows that various degrees of murder charges exist, premeditated murder (first degree murder) and several non-premeditated degrees of murder (second degree, manslaughter, etc.). With the latest charges against Trump, conspiracy, fraud, or obstruction, does the law distinguish between premeditation and non-premeditation?
Does intent even matter? Or, is this yet another attempt by Trump's crack 3rd string legal team to deflect and confuse?
The short answer is that intent most definitely matters, but the federal laws in the most recent indictment do not have the traditional varying degrees of culpability based on different mental states.
The following is likely to be sleep-inducing, but I find it helpful to keep the basics of common law crimes in mind when evaluating a criminal law, even if the criminal law in question is not based on common law.
There were initially no federal criminal laws. All criminal laws were initially state laws, and these were by and large English common law
>>>After the 1776
American Revolution, one of the first legislative acts undertaken by each of the newly independent states was to adopt a "reception statute" that gave legal effect to the existing body of
English common law to the extent that the legislation or the
constitution had not explicitly rejected English law.<<< (Yeah, I know, it's wiki, but wiki happens to be correct in this case)
en.wikipedia.org
English common law and early U.S. criminal law generally follow the following basic formula:
>>>In general, every crime involves three elements: first, the act or conduct (
actus reus); second, the individual’s mental state at the time of the act (
mens rea); and third, the causation between the act and the effect (typically either
proximate causation or
but-for causation).<<<
https://www.law.cornell.edu/wex/criminal_law
Note: Not all crimes require causation. Attempted crimes may carry penalties that are similar to successful crimes. The basic ideas is that someone who (for example) tries to murder someone but fails because he's a poor shot shouldn't escape liability.
In classic criminal law structures, different mental states carried different degrees of culpability (punishment) even if the act and causation are identical.
Here are the most common mental states:
>>>Most states use the MPC's classification for various
mentes reae. The MPC organizes and defines culpable states of mind into four hierarchical categories:
- acting purposely - the defendant had an underlying conscious object to act
- acting knowingly - the defendant is practically certain that the conduct will cause a particular result
- acting recklessly - The defendant consciously disregarded a substantial and unjustified risk
- acting negligently - The defendant was not aware of the risk, but should have been aware of the risk
Thus, a crime committed purposefully would carry a more severe punishment than if the offender acted knowingly, recklessly, or negligently.<<<
www.law.cornell.edu
Federal criminal laws, in contrast to state criminal law, is not based on English common law. It is almost completely based on laws passed by congress (keeping in mind that the federal government only has power to pass laws if such power is given to it under the constitution, whereas the states have general authority).
For the most part, The Crimes Act of 1790 was the first significant federal criminal law.
en.wikipedia.org
Federal criminal laws are written by congress and they do not necessarily follow the classic state criminal law scheme outlined above. All criminal laws (state and federal) are constrained to some degree by constitutional rights of citizens, but congress is generally free to specify a higher mental state requirement.
Crime shows are not necessarily "wrong" but the traditional mental state scheme is much more typical of state criminal law. Federal criminal laws tend to be very specific with regards to mental state, and the mental state requirement of any given federal criminal law may include requirements that do not appear in the context of state criminal laws.
Where I'm going with this is that the federal criminal laws listed in the latest Trump indictment have fairly specific mental state requirements. Here's what the DOJ says about Section 371:
>>>The intent required for a conspiracy to defraud the government is that the defendant possessed the intent (a) to defraud, (b) to make false statements or representations to the government or its agencies in order to obtain 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 is not required to prove the statements ultimately resulted in any actual loss to the government of any property or funds, only that the defendant's activities impeded or interfered with legitimate governmental functions.
See United States v. Puerto, 730 F.2d 627 (11th Cir.),
cert. denied, 469 U.S. 847 (1984);
United States v. Tuohey, 867 F.2d 534 (9th Cir. 1989);
United States v. Sprecher, 783 F. Supp. 133, 156 (S.D.N.Y. 1992)(þit is sufficient that the defendant engaged in acts that interfered with or obstructed a lawful governmental function by deceit, craft, trickery or by means that were dishonest"),
modified on other grounds, 988 F.2d 318 (2d Cir. 1993).<<< (emphasis added)
www.justice.gov
Basically, this law only defines one mental state. I have not exhaustively reviewed the other federal crimes in the most recent indictment, but I do not see any graduations of mental state in those laws.
Here's an example of a statement from the most recent indictment:
If Trump conspired with people to make knowingly false statements to the effect that 10,000 dead people voted, I can't see how Trump can avoid the intent requirement "
It is sufficient for the government to prove that the defendant knew the statements were false or fraudulent when made." See United States v. Puerto, 730 F.2d 627 (11th Cir.), cert. denied, 469 U.S. 847 (1984); United States v. Tuohey, 867 F.2d 534 (9th Cir. 1989); United States v. Sprecher, 783 F. Supp. 133, 156 (S.D.N.Y. 1992)
Who gives a flying f*ck if Trump believes in the Easter Bunny?
The prosecution rests.
