LOCK EM UP, ALL OF THEM!

Media correspondents continue to flay their audiences with the mistaken notion that to prove Trump committed a crime, the government must prove that he subjectively knew his conduct was criminal. For sure, to convict a defendant the government must prove “criminal intent" but the phrase is misleading. It does not mean a defendant must intend to commit a crime. It does not mean the government must find a signed confession or a witness who says that the defendant told him ‘I know it's a crime, but I'm going to do it anyway."

To prove criminal intent, all the government has to do is prove that the defendant knew the facts that constitute the criminal behavior. The prosecution doesn't even have to prove "willful blindness". No amount of "blindness" of legal consequences will immunize a defendant from conviction. It's just not enough to say (or even prove) "Gee, I didn't know that was illegal." Or "my lawyer said it was okay and I believed him." It's knowledge of the facts that matter.

When a defendant goes into a bank, points a weapon, and demands the teller give him $10,000, that's a crime, even if that defendant believes the bank has screwed him on a prior transaction and he was simply recovering his own money. 

When Trump demands his vice president reject valid electoral college ballots, he attempts wrongfully to influence an official proceeding, and the penalty for that is up to 20 years in jail. When he encourages an armed mob to rush the Capitol building because Pence has rejected his plea, that's simply more evidence of his statutory violation. And the failure to prevent the mob violence he was watching live on television is yet further evidence of an attempt wrongfully to influence the counting of the ballots. 

It is hardly a defense for him to say "Gee I really thought that what I was doing was okay." The Supreme Court has made that clear. Writing of the need of the government to prove "criminal intent," the court has said:

"This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim ''Ignorance of the law is no excuse" typically holds true. Instead, our cases have explained that a defendant generally must "know the facts that make his conduct fit the definition of the offense," even if he does not know that those facts give rise to a crime." (Elonis v US, 575 US 723,735 (2015).

(And on top of that, there is evidence that Trump was told, even by his own lawyer, that his plan of action was criminal.)

There's lots more evidence of Trump's criminality and I need not list it here. The riveting January 6 hearings were valuable in showing us evidence of Trump's complicity, and the Committee apparently has a lot more to tell us. And most important, I believe the Department of Justice has lots, lots more.

The real question is the political one. Do we damage the body politic by prosecuting a former president – a president who lost the election to the party that now stands in a position to prosecute him? It has never been done before. But we never had a civil war before we had a civil war, and this conspiracy is every bit as dangerous as that one.

This is not about one man. This is about a cabal, and the cabal goes beyond insiders like Meadows, Giuliani, Eastman, et al.

The most distressing news of the week was the revelation that law enforcement agencies were involved in the cover-up of the conspiracy. The notion that Secret Service personnel obstructed justice by destroying January 6 text messages they had been instructed to maintain, is shocking. Even worse, we now know that the leadership of the Department of Homeland Security is equally guilty. That criminal behavior by high-ranking government officials who are responsible for the security of our nation is troubling evidence of the scope of this conspiracy.

The Department of Justice has charged more than 800 people with the invasion of the Capitol but there's lots more to be done. Garland has indicted the soldiers, but so far the generals are at liberty.

There is no doubt that an indictment of Trump, his legal team, a half dozen Congressman, leaders of our security forces, etc. will be a monumental scandal. And whatever adverse political consequences may flow from the indictment of Trump, the indictment of his acolytes will accentuate our political division.

But the measure of this scandal, I submit, argues persuasively for the prosecution of every person involved in this attempt to destroy our Constitution.

On balance, a failure to prosecute would be far worse for the future of our democracy than a decision to forgo prosecution. This criminal conspiracy is too big, too dangerous to ignore. A decision to let Trump and his co-conspirators escape the consequences of their criminal conduct will do far more damage to the preservation of our democracy than would a decision to do justice.

Lock em up! 

A bientot.

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