Teri Kanefield @Teri_Kanefield Author, lawyer (U.C. Berkeley). I tweet about the law, books, politics, and history. All my threads are here as blog entries: t.co/vdLoEAoLvv Jan. 31, 2019 5 min read

(Thread)

Ed asks if GOP Congress members helping Trump cover up an ongoing conspiracy with Russia are guilty of crimes.

Spoiler 1: Probably not.
Spoiler 2: The solution to the GOP shielding Trump (most likely) won't come through criminal justice. We have a political problem.

1/ Helping someone cover up a crime can be a crime.

“Accessory after the fact” means you know a crime happened and you shield the person who committed the crime.
 https://www.law.cornell.edu/wex/accessory_after_the_fact 

There are 3 elements to this crime:

2/ Person B is an accessory after the fact if:

💠Person A committed a crime
💠Person B knows A committed a crime
💠B assists A with the intent to help A get away with the crime.

To prove guilt, there must be evidence to support each element beyond reasonable doubt.

3/ Each element poses a problem in the question of GOP members of Congress shielding Trump.

First, it’s possible that GOP members don’t believe Trump committed any crimes.

This guy argues that the Stone indictment “proves” there was no conspiracy👇
 https://thehill.com/opinion/white-house/427241-andrew-mccarthy-stone-indictment-makes-clear-there-was-no-trump-russia 

4/ If the GOP members don’t think there was a crime, they can’t be guilty of covering up a crime.

Ed mentioned the “ongoing conspiracy with Russia.”

Does that refer to Trump doing all he can to help Russia at the expense of our NATO allies?

That by itself isn’t a crime.

5/ Not all conspiracies are criminal conspiracies.

Maybe there was quid pro quo. If so, it’s unlikely GOP members know for sure.
Or maybe Trump thinks the US is better off aligned with Russia—a common belief on the far right.

“What?” you say. See👇

6/ Russia has been wooing the U.S. far right wing for decades.

Deciding which countries we should be aligned with is a political decision.

FDR wanted the U.S. aligned with England in WWII. Others, like Lindberg, wanted the U.S. aligned with Hitler. New Jersey, approx. 1937👇

7/ In the late 18th century, Alexander Hamilton wanted the US allied with England. Thomas Jefferson wanted the US allied with France.

Each thought the other wanted an alliance that was contrary to American values.

8/ Even if it’s possible to prove GOP members of Congress knew Trump committed a crime, element #3 is also a problem.

Element 3 says their intention must be to help Trump get away with a crime.

Proving intent is always tricky.

9/ Maybe, for example, their intention was to protect a U.S. Russia alliance because they think that’s best for the US.

They certainly failed to act as a check on presidential power, and they haven’t conducted a meaningful investigation into Trump’s 2016 Russia connections.

10/ In other words, they didn’t do their jobs.

But not doing a job isn’t a crime. Besides they probably think they are.

I think there's evidence of impeachable crimes. But first we need due process.
Pronouncing someone guilty based on news reporting is problematic.

11/ One way to view GOP congressional behavior is that they’re behaving exactly the way we’d expect authoritarians to behave.

They are falling in line and doing the bidding of the autocrat, blindly acceping that whatever Trump says is the truth.

More👇

12/ Maybe they genuinely want an autocrat—what Miller suggested when he said the president mustn't be questioned.
 https://www.washingtonpost.com/news/the-fix/wp/2017/02/13/stephen-millers-audacious-controversial-declaration-trumps-national-security-actions-will-not-be-questioned/?noredirect=on&utm_term=.699454eb4769 

Many represent strongly pro-Trump states.
Perhaps their intention to do the bidding of their constituents.

13/ Our criminal justice system is designed to make it difficult to convict someone of a crime—which is good.

If it's too easy to convict people of crimes, we run the danger of jailing people for their beliefs, or worse, jailing members of Congress for how they do their jobs.

14/ It’s frustrating to have an autocrat in the White House and so many authoritarians in Congress.

As repugnant as the political belief “we need an autocratic president” may be, lots of people do want this.
Just read Ann Coulter’s Twitter feed.

15/ I believe there is plenty of evidence floating out there that lots of crimes were committed in TrumpWorld.

But I don't have Congress shielding Trump on my list:
 https://russia-investigation-summary.com/crimes/ 

They are however failing to do the job I believe they should be doing.

16/ The Constitution contains a solution to the problem of members of Congress not doing their jobs: Vote them out.

If a majority of voters support autocracy, we'll be in trouble. (That is not happening)

17/ Ziblatt and Levitsky warn that democracies die when politicians reject democratic norms. If enough politicians reject democratic norms at the bidding of their constituents, we’ll no longer have a democracy.

18/ Unfortunately, authoritarianism has a long history in the U.S.

Slavery was authoritarian. So was the Trial of Tears, Jim Crow, and laws that kept women out of the public sphere.

After SCOTUS ruled segregation illegal in schools, George Governor Wallace himself . . .

19 . . . blocked black students from entering the University of Alabama.
 https://www.usnews.com/news/blogs/press-past/2013/06/11/george-wallace-stood-in-a-doorway-at-the-university-of-alabama-50-years-ago-today 
Arkansas Gov. Faubus said if any black students tried to attend an all-white public school, blood will run in the streets.
 https://www.upi.com/Archives/1987/09/20/30th-anniversary-of-Little-Rock-desegregation-crisis/1716559108800/ 
Not exactly law abiding.

20/ Anyone over 62 was alive when Faubus uttered those words.

The KKK is still with us.

McConnell said that a bill making it easier for more people to vote was a “Democratic power grab.”
 https://www.esquire.com/news-politics/politics/a26090966/mitch-mcconnell-power-grab-election-day-holiday/ 
It isn’t like the GOP is hiding what they stand for.

21/ I think the question of whether Congress shielding Trump makes them guilty of crimes comes from a misplaced sense that the criminal code, law enforcement (and infliction of punishment) will get us out of this mess.

I don't think it can or will.

22/ By “mess” I mean that the GOP has become an authoritarian party, and is in control of the Senate and White House👇

And that about 40% of voters seems to be fine with Trump’s authoritarianism.

That’s a political problem, not a criminal justice problem.

All of my Twitter threads are now blog posts. You can view this one here:  https://terikanefield-blog.com 


You can follow @Teri_Kanefield.



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