Teri Kanefield
+ Your AuthorsArchive @Teri_Kanefield Author, lawyer (UC Berkeley) My threads are here: terikanefield-blog.com/ NBC News Opinion contributor Impeachment notes: impeachment-trump.com/ Dec. 14, 2018 2 min read

(Thread) Trump & "Knowingly and willfully"

Criminal law 101

Q. If the statute says the crime must be done “knowingly and willfully” is Trump “immunized” from conviction if he says “I didn’t know it was illegal?”

[That’s what you want to know, right, Gregg?]

Short answer: No

1/ If a defendant simply has to say “ I didn’t know it was a crime,” and poof, get immunized the prisons wouldn’t be so full.

Let’s back up. All crimes have two components: Actus rea (a bad act) and mens rea (a criminal intent).

2/ “Willfully and knowingly” is the mens rea for lots of crimes.

When a statute says “willfully and knowingly” the standard is that the defendant has to know “with practical certainty” that the conduct will violate a criminal statute.  https://www.ca3.uscourts.gov/sites/ca3/files/Chapter%205%20Rev%20April%202015.pdf 

3/ I’ll offer 2 reasons the “I didn’t know it was a crime” defense will not help Trump.

Reason #1: Mental state can be (and usually is) proven with circumstantial evidence (as opposed to direct evidence).

There's plenty of circumstantial evidence Trump knew it was illegal.

4/ Direct evidence directly links a person to the crime, without the need for any inference.
Often direct evidence isn't available.

That's why circumstantial evidence is also used to prove crimes.

5/ Anyone who reads detective novels knows about circumstantial evidence.  https://www.law.cornell.edu/wex/circumstantial_evidence 
Circumstantial evidence implies the person committed a crime.

(To be thorough here: There's a small category of crimes called strict liability that don't require criminal intent.)

6/ There is plenty of circumstantial evidence that Trump knew it was wrong:
Just telling so many lies is evidence of criminal mind.

We also know that Cohen was previously the subject of an FEC complaint for making unlawful contributions to TRUMP’s campaign . . .

7. . . so both Trump and Cohen already had notice of the crime.

(This might even be direct evidence🤔, the distinction is fuzzy)

Also Cohen admitted that he acted knowingly and willfully, and we haven't heard all of what Cohen has to say about this.

8/ Reason #2 not to give this a moment’s more worry: I feel confident at this point that the Trumps committed trainloads of crimes.

Currently prosecutors are looking at the Trump Org tax and business records, Trump Foundation records, inaugural committee funds. . .

8/. . . Trump’s personal taxes, all the money that went through his real estate transactions.

Is he going to say he didn't even know there was a criminal code?

The campaign finance felonies are serious are enough to bring a president down. But there's MUCH more.

9/ I think that the big news yesterday was the Butina plea agreement, which implicates much of the GOP in the Trump-Russia conspiracy.

I think Trump & Giuliani are trying to get the spotlight away from Butina by throwing up silly defenses about the campaign finance violation.

10/ It’s the old “flood the zone” ploy.

I wrote about the Maria Butina plea agreement yesterday. Did you miss it? Here is the link:

You can follow @Teri_Kanefield.


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