Trump et al. attempted a fascist coup. It failed. What does that mean so far as criminal law is concerned?
Trump’s Big Lie is a Big Fascist Lie. It cannot be assessed as a normal criminal lie, and it lives outside the contours of normal politics.
The Big Lie is all about subverting normal politics and the norms for criminal prosecution.
Trump’s attempted coup, which was fascist in every respect, almost succeeded. That shows the fragility of American democracy.
Fortunately, however, it did fail, and Trump et al. will likely have to defend themselves in court against at least two federal charges. 1/10
We already know from the 12-pager he issued after the first J6 Cmte hearing that Trump will argue in his defense that the law and facts are on his side.
But of course, they aren’t on his side — at all.
“Rubber room” stuff is how Pence described it. 2/10 tinyurl.com/262qjfk6
And this is a problem, because Trump cannot argue: this is what I thought, and I (and the other conspirators) cannot be charged for doing what I thought were the facts and the law, even if the jury is persuaded that I was wrong about all that. 3/10
The problem is that it is a well-established principle in case law that being mistaken about the law (or the facts) is no defense.
See this brief article in Justia on the mistaken belief defense.
“Ignorance of the law is very rarely a defense.” 4/10
Note also that none of the exceptions to the no-defense rule in this Justia list apply to Trump et al.
As regards the last bullet item, it is dispositive that all the “applicable officials” in Trump’s future court case(s) told him that his scheme to overturn the election, in all its pertinent details, was *illegal.” 5/10
The same applies to advice from attorneys.
Justia: 6/10
All the attorneys behind Trump’s illegal scheme were outside, private attorneys: Eastman, Giuliani, et al. And all the attorneys who were aware of and advised on the scheme who did have official status told Trump that his scheme was *illegal*. 7/10
Of course, we know that Trump will not be defending himself on the grounds that he was (permissibly) mistaken about the law. He will be arguing, quite brazenly, that he was *right* about the facts and law, and that he still is. 8/10
Finally, I will note that an article in Justia could not be cited as an authority in court! But Google searching on the subject shows that the relevant case law does support the claim that courts reject “mistaken about the law” defenses along the lines outlined by Justia. 9/10
PS: Much has been written about the need to establish “corrupt intent,” and the difficulty of doing so in Trump’s case.
As I have argued at some length, this surely confuses fraud cases (like bribery) with cases that are offenses *on their face*. 10/10
