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K, back to Barr’s meritless defense of Trump. If I rep someone, and I want to convince DA/AUSA not to charge, or drop charge, I persuade her that virtually no set of 12 jurors would believe their charge over my client’s defense. To do that, I would NEVER argue “mistake of law.”
“I didn’t know it was illegal” is the classic mistake of law, which is never a defense to a criminal charge. So if I ponied up Barr’s kind of defense - yep, my client stole $2500 leggings, but thought it was legal - I’d be laughed out of the DA’s office.
For obstruction of justice, various sections of 18 USC Ch. 73 can apply, depending on whether it’s investigation, enforcement or governmental proceeding you’re obstructing. But they all require an intent to obstruct justice - prevent authorities from doing that job.
To get why Barr’s excuse ISN’T a defense to obstruction, let’s look at what WOULD be. My client’s roommate deals drugs. Client doesn’t know. Roomie’s tipped cops are on way, tosses baggie in toilet, flushes but it doesn’t go. Client goes in, takes dump, flushes. Cops arrest both.
If I convince DA I can prove those facts, and a jury is likely to believe them, the charge against my client gets dropped. Client didn’t have general criminal intent - didn’t know he was even involved in a crime. And didn’t have specific intent to obstruct (hide drugs) either.
But that differs from Barr’s defense of Trump. Let’s say my client 1) knew the roommate was dealing drugs, even though client didn’t participate, and 2) knew the baggie was in toilet, even though client did actually poop before flushing. That’s the Barr defense. And it’s poop.
I’d admit “Client knew there were crimes. And knew flushing would obstruct prosecution of those crimes. But client flushed for a different reason, and he thought that was legal.” That has both elements of the Barr defense, and both are still poop.
First, Barr claims that even though Trump’s actions had the effect of obstructing justice, his MAIN reason for directing assocs to lie was that he was frustrated, scared, afraid for his presidency. Having a second non-criminal motive is not a defense. It’s poop.
Second, Barr asserts Trump is non-chargeable because he did not know he was breaking the law. This comes up more often in financial (“white collar”) crimes, and usually breaks down to “I knew it was illegal, but I didn’t think this law would be enforced against someone like me.”
But let’s say Trump’s belief that lying to the public about crimes under investigation, ordering subordinates to do the same, and using threats and rewards to demand compliance with those orders was genuine. He really thought that was legal. Still, for two reasons, just poop.
The problem is, we have a witness who proves beyond reasonable doubt that Trump knew he was committing SOME crime. That’s the sole reason why someone cries out “I’m f**ked” upon learning a special prosecutor has been appointed to investigate them.
That exclamation is like proving that Jalisa and Becky both knowingly went through the closed store’s unlocked door. At that point, they knew they were “f**ked” for something, if they were caught and prosecuted. That’s mens rea or general intent.
Now, for obstruction, you ALSO need the specific intent to obstruct an official proceeding. Mistake of law still not a defense to specific intent, tho mistake of fact might be. A mistake of fact that’s NOT a defense? “I flushed the dope, but didn’t know the cops were here.” Poop.
Mistake of fact that IS a defense? The initial scenario where my client didn’t know drug dealing was going on, and didn’t know drugs were in the toilet. Just flushed poop. So not poop. But Barr can’t make - and isn’t making - that claim for Trump.
Barr’s arguing, implicitly: “Yes, Trump lied. He knew he lied. Yes, Trump dangled pardons as a bribe. Yes, he threatened to fire ppl who refused to help him with the coverup. He knew he did that. But he thought all those things were legal for him to do as POTUS.” Poop.
That’s not a defense, because pure mistake of law (thinking that the things you intentionally did were legal) is never a defense. And it’s also no defense that Trump acted out of “fear” or “frustration,” because even if true, the facts show he also intended to obstruct justice.
TL;DR - Barr is 💩 💩 💩
Thank you for coming to my Ted talk.
Thank you for coming to my Ted talk.
