Elements
It takes three elements to prove a crime has been committed. The first is the actual conduct, the “commission” of a crime. The second is the intent to commit a crime – the “mens rea” or criminal “state of mind”. And the third is the act: was the person accused of the crime the “proximate cause”, the reason the crime occurred.
A guy enters a Seven/Eleven with a gun. He walks up to the counter and demands money. The clerk gives him the money in the cash register, and the guy walks away. It seems completely cut and dried. The actual conduct, the commission: going into a Seven/Eleven with a gun and demanding money. The “mens rea”: he took a gun into a store to get money that wasn’t his. The actual “proximate cause”: the guy, the gun – the money was taken.
Unless, of course, he was wearing a “Brinks” uniform and it was the daily pickup. The Brinks guy doesn’t have either the intent to commit or crime, nor was an actual crime committed. But he did have a gun, and did demand the money.
True Confessions
Ex-President Donald Trump has publicly stated that he was looking for ways to change the outcome of the 2020 election. He wanted elected officials to “recount” the votes in his favor. And he wanted to stop Congress from certifying the electoral votes in 2020, the votes that elected Joe Biden as the next President.
There were multiple plans to prevent Biden from winning office. “Alternative” electoral certificates (some might say fraudulent) were provided from the states. If accepted, they would have provided a Trump victory. A second plan called for the Vice President to “throw out” contested ballots that were for Biden. And there was even a plan for the President to declare a form of “martial law”, seize select voting machines, and hold a “do-over” so he could win.
Trump advisors Peter Navarro and Boris Epshteyn came on television and outlined their plan, called the “Green Bay Sweep”, and how it would work. As MSNBC commentator Ari Melber, also an attorney, asked at the time – “…Do you realize you are describing a coup?”
From a non-attorney’s point of view, it seems that Trump, his Chief of Staff Mark Meadows, his advisors Navarro and Epshteyn (and attorney John Eastman and others) confessed to criminal behavior of the worst kind. They intentionally (mens rea) interfered with the lawful Congressional process (18 USC §1505), attempted to overthrow the lawful government (18 USC §2385) and interfered with the election (multiple US laws).
Knock on the Door
So where is the FBI pounding on the door at 5:23 in the morning: guns drawn, dogs barking, black SUV’s at the curb? Where is the “perp walk” into the Federal Courthouse, and the preliminary hearings with “Not Guilty, your Honor” and bail set and monitors attached to ankles? What is the Justice Department waiting for? Where is the Roger Stone or Michael Cohen images that we all saw in the past six years? Why did Navarro and Epshteyn go onto a television show and “confess”? And why is Trump now using rallies to explain his actions – his crimes?
Intent
The answer is simple: they do not believe they committed a crime. They think there wasn’t intent – the “mens rea” of criminal conduct, and that their actions were, in fact, perfectly legal. The “Green Bay Sweep” was a simple parliamentary maneuver. They look back at the 12th Amendment and the contested election of 1876, and believe they just found a “better way” to win the election. Ex-President Trump believes he was acting within his “powers” as President, and as a candidate for office, by devising any plan to contest the election.
And – this is the real important part – none of them are willing to accept that they are the “proximate cause” of the attack on the Congress, the violence on the steps, or the vandalism in the building. They all say: they “aimed the crowd and pulled the trigger”, but they did not have the intent for them to attack the building. They only wanted the protests outside of the Congress to try to press Pence and other Republicans to go through with the “Green Bay Sweep”.
Garland’s Dilemma
The Department of Justice has a very long tradition of NOT prosecuting former Presidents or their administrations. Barack Obama did not allow his Attorney General Eric Holder to charge members of the Bush Administration for enabling the torture of prisoners at “black sites”. Gerald Ford went so far as to pardon his predecessor, Richard Nixon, to avoid the spectacle of a US President “in the dock”. Even the Trump Justice Department stayed away from indicting former Obama staffers (though they did go after the FBI agents who investigated the Trump campaign).
The Biden Administration got elected on the theme of “returning to normal”. Prosecuting members of the Trump Administration, much less the Ex-President himself, would be highly unusual. That doesn’t make it wrong, just “against the flow” of what Biden usually would do.
But there is a real question of whether the President’s plans, while completely outside of the norms and traditions of the US Constitutional Republic, were illegal. And that creates three issues for the Department. First, how to demonstrate that what Trump, Meadows, Navarro and the rest did was against the law. Second, how to convince a jury of non-lawyers of that illegality. And third, proving that the accused knew, or should have known, that what they were doing wasn’t just against the “norms”, but against the Law.
Were they robbing the Seven/Eleven – or were they simply the “Brinks” guys? That’s the question Attorney General Garland will have to answer.
