Laurence H Tribe and Dennis Aftergut write:

On 8 March, a jury took three hours to render a guilty verdict against Guy Reffitt, a January 6 insurrectionist. Donald Trump could not have been pleased. DC is where Trump would be tried for any crimes relating to his admitted campaign to overturn the election.

Jurors there would have no trouble finding that the evidence satisfies all statutory elements required to convict Trump, including his criminal intent, the most challenging to prove. That is our focus here.

A 3 March New York Times story asserted that “[b]uilding a criminal case against Mr Trump is very difficult for federal prosecutors … given the high burden of proof … [and] questions about Mr Trump’s mental state”.

The clear implication is that justice department leaders may simply be following the path of prudence in hesitating to indict, or even to robustly investigate, Mr Trump. But based on the already public evidence – and there’s undoubtedly lots more that’s not yet public – no vigilant prosecutor would be deterred by the difficulty of convincing a jury about Trump’s state of mind. Full speed ahead is now the only proper course.

The former president is vulnerable to charges of conspiring to defraud the United States, 18 USC §371, and obstructing a congressional proceeding, 18 USC §1512(c)(2).

Regarding §371’s intent requirement, the US supreme court has ruled that conspiracies to defraud the United States include plots entered “for the purpose of impairing, obstructing or defeating the lawful functions of any department of Government” using “deceit, craft or trickery, or … means that are dishonest”. [Continue reading…]