What We Know Versus What We Can Prove About Trump*
23 JANUARY 2022
I work at a law firm that focuses primarily on litigation. From time to time, I hear someone say, “we know” a fact to be true “but can we prove it?” Knowing something to be true is one thing. Translating that into admissible proof in court — and proof beyond a reasonable doubt in a criminal case — is yet another. From a defense point of view, I often examine whether court rules bar certain evidence that would otherwise tend to prove a fact. The rules are, after all, designed to allow only evidence that is both reliable and can be tested with cross-examination or similar challenge.
Representative Jamie Raskin recently said of Trump what every reasonable person knows to be true: “the guy’s a walking crime wave, and has committed crimes all over the country, including sexual harassment and assault on a lot of people. There’s bank fraud and there’s real estate fraud and there’s tax fraud.”
If that’s true, and we know it is, why isn’t this guy in prison?
What do we know about Trump, and can it be proved? In addition to the litany of crimes identified by Representative Raskin, we know:
• Trump corruptly obstructed, influenced, and impeded an official proceeding, and attempted to do so, in violation of 18 U.S.C. § 1512(c)(2) which, upon conviction, carries a fine or imprisonment of not more than 20 years, or both.
• Trump conspired to “overthrow, put down, or to destroy by force the Government of the United States, . . . or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States,” in violation of 18 U.S.C. § 2384 which, upon conviction, carries a fine or imprisonment of not more than 20 years, or both.
• Trump incited and engaged in a rebellion or insurrection against the authority of the United States and its laws, in violation of 18 U.S.C. § 2383 which, upon conviction, carries a fine or imprisonment of not more than ten years, or both, and a permanent bar from “holding any office under the United States.”
• Trump conspired to impair, obstruct, and defeat the lawful governmental functions of the United States by dishonest means to interfere with the United States’ political and electoral processes, including the 2020 United States presidential election and the peaceful transition of power, in violation of 18 U.S.C. § 371 which, upon conviction, carries a fine or imprisonment of not more than five years, or both.
• Trump violated Georgia and federal election laws with his demand of Secretary of State Brad Raffensperger to find 11,780 votes (one more than President Biden’s margin of victory), (1) by seeking to have ballots counted that were “known by [Trump] to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held,” in violation of 52 U.S.C. § 20511, which, upon conviction, carries a fine, imprisonment of up to five years, or both; (2) by intentionally soliciting another person to engage in conduct that constitutes a felony in violation of GA Code § 16–4–7 which, upon conviction, carries imprisonment of not less than one nor more than three years; and (3) by intentionally engaging in criminal solicitation to commit election fraud in violation of GA Code § 21–2–604 which, upon conviction, carries imprisonment of not less than one nor more than three years.
• Trump, who previously took an oath as an officer of the United States to support the Constitution, engaged in an insurrection and rebellion against the United States which, once proven, results in his permanent bar from holding future office under Section 3 of the Fourteenth Amendment.
But can these crimes we know he committed be proven?
Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
From the comfort of my own blog space I have been known to ask whether Attorney General Garland is any more than a paper tiger and to give him advice about how to go about his job. On January 5, the Attorney General assured us that his Department of Justice will, on a non-partisan basis, go wherever the facts take them and hold to account everyone who is responsible for the crimes committed against the United States leading up to and on January 6. He suggested the facts could take him upstream to the biggest of fish.
So let’s examine what is necessary to prove what we know. Every crime has two overarching elements:
The first element is known as mens rea, meaning guilty mind, and is sometimes referred to as criminal intent. A guilty mind, or criminal intent, ranges from the following and variations of these examples identified in specific criminal statutes: a willful or conscious objective to engage in conduct or cause an outcome; knowing that one’s conduct is reasonably certain to cause a result; reckless or a gross deviation from what ordinary people would do under similar circumstances; criminal negligence or a failure to perceive that the conduct poses a substantial and unjustifiable risk of a certain outcome. The level of intent necessary for a conviction depends on the crime.
The second element is known as actus reus which means guilty act in furtherance of a crime.
Proof beyond a reasonable doubt of both elements is necessary for a conviction because even if someone commits a harmful act, with very few exceptions society does not punish people who innocently cause that harm.
All crimes identified above, the ones that we know Trump committed, have a mens rea or guilty mind element and an actus reus or guilty act element. A good example of both broad elements is obstructing an official proceeding. The elements are corruptly obstructing, influencing, or impeding an official proceeding or attempting to do so in violation of 18 U.S.C. § 1512(c)(2). “Corruptly” is the guilty mind or criminal intent element, and “obstructing, influencing, or impeding an official proceeding or attempting to do so” is the guilty act element. If one innocently obstructs, influences, or impedes an official proceeding, he committed no crime.
The devil now is in the details. The statute defines corruptly to mean “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” 18 U.S.C. § 1515(b). The statute does not further define what it means to be motivated by an “improper purpose.”
Defense lawyers will argue that the terms “corruptly” and “improper purpose” are too vague to place a criminal defendant on notice under the Due Process Clause.
The prosecution will argue it is common sense that improper purpose means consciousness of wrongdoing, depraved, evil, wicked, immoral, wrongful, or otherwise malign.
This will give Trump an angle if he is charged with “corruptly obstructing, influencing, or impeding an official proceeding or attempting to do so.”
Several January 6 defendants who are charged under 18 U.S.C. § 1512(c)(2) challenged “corruptly” as unconstitutionally vague. In a Memorandum Decision and Order dated December 20, 2021, linked in Notes below, D.C. Federal District Judge Amit P. Mehta said no, “corruptly” is not fatally vague. I commend you to the judge’s thorough analysis. After an eight-page, single-space discussion, Judge Mehta held: “It suffices for present purposes to say that to prove that Defendants acted ‘corruptly,’ the government, at least, will have to show that they acted with consciousness of their wrongdoing. So defined, the term ‘corruptly’ is not unconstitutionally vague.”
The actus reus or guilty act component is “obstructing, influencing, or impeding an official proceeding or attempting to do so.”
Parenthetically, “official proceeding” includes “a proceeding before the Congress,” 18 U.S.C. § 1515(a)(1)(B), and in that same decision Judge Mehta explained in a ten-page, single-space analysis that certifying the electoral votes qualifies as a “proceeding before Congress.”
The foregoing is just one example of the fight the Attorney General or any prosecuting agency will encounter when dealing with Trump’s high-priced lawyers. And of the crimes we know Trump committed in the lead up to and on Jan. 6, this may be the easiest to prove.
Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
Crime bosses typically maintain deniability by insulating themselves, keeping their hands clean by using pawns to do their dirty work. Trump? Not so much. He often says the quiet part out loud. The acts and omissions (failures to act when one has a duty to act, say, to protect the country from enemies foreign and domestic rather than becoming one of its enemies) which constitute the guilty acts may be more easily proved in Trump’s case.
The mens rea or guilty mind may be the most challenging to prove. The defense argument will be that Trump could not have had the requisite criminal intent, the guilty mind, to have committed crimes with which he is charged because, for example, he really believes the election was stolen. He may also claim “advice of counsel,” meaning he relied on his advisors who told him (1) he’d won the election; (2) President Biden won through election and voter fraud, so the victory is illegitimate and doesn’t count; (3) legal/constitutional mechanisms existed to (a) prevent or delay certification of the electoral votes, (b) order the military to seize the voting machines, (c) cause states to submit alternate certifications of electoral votes, and (d) etc., and therefore could not have had the requisite state of mind. (He certainly will rely on advice-of-professionals defense in any tax, bank, or insurance fraud cases.)
Since the burden of proof will be on the prosecution and not on Trump, however, the defense will do its best to undermine every effort the prosecution makes to show, for example, that Trump knew the Big Lie was just that, and at the end will argue the prosecution was unable to prove Trump had the requisite guilty mind. It is hard to believe defense attorneys would advise Trump to testify in his own behalf, but that decision would ultimately be up to the defendant. His cross-examination could be one for the ages.
Assuming a prosecutorial agency files criminal charges against Trump, it will need an arsenal of admissible evidence, proof beyond a reasonable doubt, of Trump’s guilty mind. Trump will never publicly admit knowing or believing he lost, so prosecutors won’t have a public confession to use against Trump. Maybe prosecutors will happen upon something he said in private that reveals he knew he lost fair and square or that what his advisors were telling him was nonsense. Prosecutors, as is often the case, will have to use surrounding facts or circumstantial evidence as proof of intent. I can think of many facts the prosecution would likely seek to place in evidence to show that Trump acted with the requisite intent — corruptly, with an improper purpose, with consciousness of guilt or wrongdoing, for example. With 400 cooperating witnesses, tens of thousands of records, and now 800 pages from the National Archives, the Jan. 6 Select Committee, I am quite certain, has scores it could share with the DOJ.
Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
In the Washington Post’s January 21, 2022 Plumb Line, Greg Sargent commented on the Jan. 6 Select Committee’s focus on Ivanka Trump. While his Opinion addresses “exposing dark MAGA truths,” which he believes will shatter Republicans’ “mythologizing” Jan. 6, the discussion also gave specific examples of information that, in the end, prosecutors could use to support the guilty mind element of crimes charged against Trump. The information the Jan. 6 Committee seeks from Ms. Trump could go well beyond the guilty mind element of corruptly interfering with a congressional proceeding.
Sargent says:
“The importance of the role of the former president’s daughter emerges from the committee’s letter inviting her to testify. As the violence raged, President Donald Trump sent a tweet attacking Vice President Mike Pence for refusing to subvert the congressional count of electors.
[Trump’s 2:24 p.m. tweet said: ‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.’]
“This tweet energized many in the mob to break into the Capitol and try to disrupt the count themselves, according to federal indictments cited in the letter. Importantly, as all this happened, Ivanka Trump was in the middle of efforts to persuade her father to call off the rioters, the letter notes. Instead, he incited them by attacking Pence. . . .
“The letter adds:
‘We are particularly interested in discussions inside the White House and with the President before and after his 2:24 p.m. tweet. Testimony obtained by the Select Committee indicates that members of the White House staff requested your assistance on multiple occasions to intervene in an attempt to persuade President Trump to address the ongoing lawlessness and violence on Capitol Hill.’
“Here’s what this means: The committee is focused on what Donald Trump’s advisers and family members — in this case, Ivanka Trump — can say about his state of mind as he tweeted his attack on Pence. Remember, he did this instead of calling off the rioters, as they all urged him to do.
“Before the riot, Donald Trump had riled up the mob by attacking Pence for announcing he wouldn’t subvert the election. So when Trump sent the tweet, did he understand the violence as something that could be weaponized to intimidate Pence into carrying that out?
“We already know Trump strongly hinted as much when he rebuffed House Minority Leader Kevin McCarthy’s (R-Calif.) appeals to calm the mob.
“Rep. Jamie B. Raskin (D-Md.), a member of the select committee, notes that Trump’s tweet already ‘speaks for itself’ in indicating intent.
“’Reasonably understood, the tweet reads as micro-incitement of the mob to target its fury against Vice President Pence,’ Raskin told me. ‘I do believe that stands alone.’
“‘But it will help to eliminate any suggestion that this was just accidental or inartful wording if we learn from contemporaneous witnesses what Trump’s state of mind was,’ Raskin continued.
“In turn, Raskin said, this might indicate that the ‘incitement of the mob’ toward Pence ‘was fully intended and not some sort of drafting error.’
“The letter to Ivanka Trump also offers this:
‘The committee has information suggesting that President Trump’s White House counsel may have concluded that the actions President Trump directed Vice President Pence to take would violate the Constitution or would be otherwise illegal[,]’ [helping to defeat an advice of counsel defense.’]
“So the committee is looking hard at whether Donald Trump knew full well that in directing Pence and others to execute the scheme, he was pressuring them to violate their official duty or worse.
“We don’t know if Ivanka Trump will cooperate. But even if not, the committee has revealed it has already learned far more than expected about Donald Trump’s conduct during the violence.
“It’s likely this will create a detailed picture of how the then-president came to understand the violence as instrumental to carrying out what was in effect a procedural coup, a concerted, far-ranging and potentially unlawful subversion of our constitutional order.”
I trust Representative Raskin that the evidence against Trump will blow the roof off the House. And for now, I’m taking Attorney General Garland at his word.
As I have stated elsewhere, the damage Trump and his party are inflicting on the foundational principle of liberal democracy — the mechanism by which individual citizens participate in self-government and together decide who our leaders will be — is unforgivable. The domestic attacks are considerably more insidious and damaging than those brought by foreign actors. Why? The country cannot unite against a common enemy but instead divides against itself. Moreover, the perpetrator’s substantial, but minority, following includes people whom Trump encouraged, people who are willing, people who are eager, to commit acts of domestic terror and violence when Trump doesn’t get his way.
I look forward to a time when Trump “just goes back to being another crackpot on the internet” (CNN’s Jim Acosta), and his only meaningful relevance to government is relegated to the consequences of reinforcing and preserving the rule of law and its equal application. Having flaunted the law for decades leading up to his presidency, during his entire administration and ongoing in real time, Trump should be prosecuted for the many alleged crimes against the United States which remain viable under applicable statutes of limitation, on top of the lead up to and events on Jan. 6.
Some opine the country cannot heal if Trump is prosecuted for his crimes (crimes nearly 74 million people do not believe or don’t care that he committed). They suggest that the inevitable revolt and further division would not be worth the benefit to preserving and reinforcing this defining principle of self-government in the United States: the rule of law that no one, including — especially — the most powerful elected official, is above.
Others, including me, insist the rule of law can never be vindicated and preserved absent thorough investigation and prosecution of all crimes for which proof beyond a reasonable doubt and a likelihood of conviction exist. If not, many argue, Trump — whose emergence to the presidency and entire administration were and continue to be defined by a level of corruption never before encountered in the highest office of the American experiment — will have proved to himself and some 74 million Americans he is above it and a double standard exists.
For more than any of Trump’s many other sins against the United States and its citizens (sans his disastrously inhumane, incompetent response to the pandemic), Trump must be held to account for the crimes he committed and is committing as he employs every conceivable, including illegal, means to hold onto power by overturning or nullifying the will of the voters, an uncontestable majority that gave Biden (and democracy) a substantial victory in the arcane, conservative-favored electoral college.
By giving Trump and his co-conspirators their day in court, this country might rebuild and reinforce confidence in the rule of law and the integrity of the electoral system and counteract the false information about his administration — that Trump won the 2020 presidential election or that Biden would not have won but for massive fraud.
Let Trump and his co-conspirators try to develop and introduce admissible evidence that he won the election or that Biden rode a massive wave of fraud into the White House. The country, indeed, the world, will witness that the United States holds its leaders to the same standards it holds the rest of its citizens — accountable for their crimes against the United States, especially for crimes that undermine the country’s foundational principles and institutions.
And Trump will get the attention his personality disorder so desperately craves. Everybody wins.
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*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers.
Notes
https://www.law.cornell.edu/uscode/text/18/1512
https://www.law.cornell.edu/uscode/text/18/2384
https://www.law.cornell.edu/uscode/text/18/2383
https://www.law.cornell.edu/uscode/text/18/371
https://www.law.cornell.edu/uscode/text/18/1515
https://casetext.com/case/united-states-v-caldwell-146
https://www.washingtonpost.com/opinions/2022/01/21/ivanka-trump-jan-6-committee-expose-maga-truths/
https://january6th.house.gov/news/press-releases/select-committee-seeks-information-ivanka-trump