Mar-a-Lago Proving intent

The three most important things in the Trump Mar-a-Lago trial are intent, intention, and intent. If the case goes to trial, Trump’s intention will decide whether he is innocent or guilty. It does not matter what Trump did with classified information. But it will determine what his intentions were. They are almost an aberration and have little value.

Aside from any legal action against Trump on January 6, and all other legal actions, the Mar-a-Lago warrant for search cites three sections law as justification. This means that any investigation arising out of the searches will most likely be brought under at least one of these– an outline of a path to prosecution. It seems to me that Trump will likely be guilty if some documents were classified. If Trump’s argument against declassification is rejected, then it would appear that Trump could have been guilty. You can see an example of the hathotic glee at this prospect here.

But there’s one step that must be proven, which is often forgotten in Twitter analysis. It is intent. American law has the concept of intent. To establish many criminal offenses (including tax evasion and incitement), an accused must not have committed any objectively criminal act like inciting a group to commit violence but also have had a criminal goal in mind. The “what” and the “why” are separated by intent. This is the distinction between an error, mistake or misstatement and an actual crime. While the action is usually easy to prove, it’s often difficult to show the thought pattern, which refers only the thoughts that were in someone’s heads, or the motivation behind the action. It is based on Mar-a-Lago’s laws that it matters the most.

The three laws mentioned in the Mar-a-Lago search warrant all specifically require proving intent–Trump’s mental objective in taking a classified document–or its equivalent:

The first law cited, 18 U.S.C. SSSS 793, titled “Gathering, transmitting or losing defense information,” says (emphasis added), that “Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation… copies, takes, makes, or obtains… anything connected with the national defense” has violated federal law. The law repeatedly mentions intent, with some instances being rephrased as reason, purpose or the like. This law is part of the infamous Espionage Act of 1917, parts of which also include a gross-negligence standard, meaning a prosecutor does not have to prove specific intent in all cases.

The second law, 18 U.S.C. SSSS 2071, titled “Concealment, removal, or mutilation generally” says that the act must be (emphasis added) “willful and unlawful. ” This statute also states anyone who violates it should be disqualified from holding public office, but while that issue would likely get litigated in court, legal scholars broadly believe it couldn’t be used to stop Trump from running for president again in 2024. Only Article II of Constitution outlines the criteria for running for the presidency.

The third law, 18 U.S.C. SSSS 1519, the “anti-shredding provision,” imposes criminal penalties on anyone who (emphasis added) “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation. “

Intent as far as we (and Trump) are concerned, almost always means specific intent, as opposed to general intent. The prosecution needs to prove that the accused intended to commit an offense against the law. It doesn’t matter if the defendant intends the result of the act. Specific intent means the accused intentionally committed an act and intended to cause a particular result, a wrongful purpose, when committing that act (see U.S. v. Blair). Merely knowing that a particular result is likely isn’t the same as specifically intending to bring it about (see Thornton v. State). It is important to note that not all of the above laws require the documents to be classified. However, it wouldn’t be difficult for prosecutors to prove that non-classified documents are at the “injuring” level. “

Based on public information, Trump might have the following arguments regarding intent: On the first charge, the Espionage Act, prosecutors would need to show he kept classified or other national-security-related information at Mar-a-Lago with the intent to cause injury to the United States. The third charge would require prosecutors to prove that Trump maintained classified information or national-security data at Mar-a-Lago in an effort to hinder or obstruct investigations. The second charge seems more geared toward general intent–that is, that Trump kept classified or other national-security information at Mar-a-Lago with the knowledge it was wrong without necessarily intending a specific outcome (actus reus), such as injury to the U.S. or obstructing an investigation. Each of these are difficult to prove in court.

Unfortunately, Twitter analysts tend to overlook much of the nuance. They assume that Trump is trying to be a dictator and don’t need proof. For example, one blue check wrote, “Will Donald Trump finally face something approximating justice for his five decades or more of apparent and aggressive lawlessness, culminating in a criminal presidency and an attempted coup, with the possibility of treason and criminal espionage? Is this the meddling would-be tyrant-king, with his millions of supporters, who is leading a neofascist organization that threatens to overthrow and destroy American democracy? “

Subscribe Today

Get weekly emails in your inbox

Hyperbole aside. The critical question is whether or not the prosecutors can prove that Trump intended to commit the more severe charges listed above. Proving a state of guilty mind, mens rea, would be the crux of any actual prosecution based on the Mar-a-Lago documents. What was Trump’s thinking then? Was he attempting to harm the United States or to hinder an investigation? This is difficult because we don’t know the nature of the documents. However, even though the documents are in front of us, it is hard to show a court that Trump intended to keep them. That would mean coworkers or colleagues would have to testify as to Trump’s statements at the time. Based on the information we have, it is unlikely that Trump will go to prison for keeping the documents at Mar-a-Lago.

Take, for instance, tax evasion charges now levelled against the Trump Organization. As part of a plea agreement, Trump Organization CFO Allen Weisselberg will testify against Trump but not Trump as to the reason why certain compensation was paid to the Organization in forms such as school tuition and cars that are outside of the tax system. Although it will be an unfortunate day for the Organization, Weisselberg won’t testify about his boss’ mental health. The question of who is both capable and willing to testify against Trump remains unanswered. Trump will not go to prison for any of these things, despite his blue enthusiasm.

The last questions are likely to be the most crucial. The DOJ has a clear understanding of the law, which raises concerns about federal agents’ motivations. Why would the Justice Department bring the Mar-a-Lago case before the court, knowing that there are very few chances of a serious conviction? Why would the FBI issue a highly publicized search warrant? For evidence that is unlikely to ever be used. The law is not something that should be ignored. However, the DOJ must follow it. In choosing the next president, the justice system can not replace the electoral process.