Thread by @OrinKerr

Minor question about the Jeffrey Clark DOJ story: Does it matter to our assessment of Clark's culpability if he genuinely believed the conspiracy theories of the 2020 election?

A thread.

nytimes.com/2021/01/24/us/…

Like a lot of readers, I was astonished by the Clark story. My immediate reaction is to think (a) Clark is obviously smart enough to realize that the conspiracy theories were total BS, and (b) using them as cover was an outrageous affront to the rule of law.

And maybe it's that simple. But I wonder about another possibility.

A notable aspect of the Trump years is how otherwise-smart people fell for some quite ridiculous conspiracy theories. A lot of people can think of examples, from that high school friend, or that uncle, who went off the conspiracy deep-end in recent years.

https://twitter.com/OrinKerr/status/1326988056759418880

So here's my question, which, in an un-Twitter-like way, I am asking as a genuine question: Does it matter to our view of the situation if he deeply and truly believed the utterly ridiculous conspiracy theories?

To be clear, I don't know Clark and have no insider info about him. But it's interesting, at least to me, to consider how much our view of Clark hinges on our assumption that he surely realized the conspiracy theories were BS.

My 1st instinct is to say that the conspiracy theories were so obviously BS that whether Clark genuinely believed them shouldn't make that much difference. You don't act on a belief like that without looking into it, and anyone with Clark's background who did so would see the BS.

But even if that's right, there's a way in which him genuinely being so clueless does seem to impact his culpability: From a crim law perspective, it's like the different between a purpose mens rea and a reckless mens rea. He really really should have known, but maybe didn't.

I'm interested in what others think about this, so here's a poll on it: If Clark genuinely believed the conspiracy theories, does it change your view of his culpability in his actions?

Oh, and I realize this kind of question works a lot better in a law school classroom than on Twitter: Questions like "how relatively bad was X" can be misconstrued from folks who think only in terms of good vs. bad. But so it goes.