“I am a moron.” What a strange place we have come to. The best defense the President can mount to growing concerns that he obstructed justice is to plead ignorance of Washington.
As we reflect on former FBI Director Comey’s written and oral testimony this week, lawyers, quite naturally, tend to consider the law. They ask of themselves, and opine to others, on whether Comey’s testimony makes, for example, a colorable case of obstruction of justice. Indeed, just the other day Phil Lacovara, the well-regarded former Watergate prosecutor, opined in the Washington Post that the standard of liability had been met.
Color me skeptical. We know, with a high degree of confidence, that if Comey is a credible witness (and he certainly seems so to me) that President Trump asked Comey for his loyalty; that he asked Comey to see his way clear to ending the Flynn investigation and removing the cloud of Russian allegations that hung over him. And we know, as well, that Trump fired Comey, offering a variety of inconsistent and incommensurate justifications for that action (e.g. falsely stating that Comey had lost the confidence of his staff and first stating that the reason for dismissal was the bungling of the Clinton email investigation, while then saying that the Russia issue had been on his mind). Taken together these facts certainly give us the actus reus of the crime – they are the acts which taken together constitute the completed offense.
But do they also give us the mens rea – the intent – necessary for conviction? Recall that as Lawfare has recounted, obstruction of justice requires proof of a corrupt intent. In other words it requires proof of something more than an intent to do the acts that constitute the offense; it requires that the prosecutor demonstrate beyond a reasonable doubt to the satisfaction of a jury that the actor did the acts with malign purpose. [For those who want a much more detailed and ongoing summary of the law in this regard, I commend the Sidebars blog, written by Randall Eliason who speaks to this and many other issues in great detail.]
Of course it is often difficult, if not impossible, to prove intent directly. Few, if any, criminal defendants say aloud the words “I am doing this with the corrupt intent to frustrate an ongoing investigation.” And thus we prove intent by inference. Are the actions such that we reasonably infer the corrupt nature of the intent from the evidence of what was done? In the normal course of events, the facts recounted would give rise to such an inference, quite powerfully. Especially so when combined with the President’s partial acknowledgment of his motivations (e.g. “the Russia thing” was on my mind).
But President Trump is anything other than an actor “in the normal course of events.” Already one can see the colorable grounds for a strong counter-argument – that the President simply did not know that what he was doing was wrong. Shadows of this argument can already be seen in the defense being offered for him by Governor Christie, who has said that the President was “simply talking like a New Yorker.” Other Republicans echo that idea – just this morning Speaker Ryan was reported to have said that: “He’s new to government, and so he probably wasn’t steeped in the long-running protocols that establish the relationships between [the Justice Department], FBI and White House. He’s just new to this.” Even some of his harshest critics seem to have the same idea: they contend that the President was acting like a corporate CEO and not the President, and that he simply did not know how the Executive Branch functioned.
But if that is true, then his defense to the criminal charges is simple – he was simply unaware that intervening in an ongoing investigation and asking the FBI Director for loyalty was wrong. Not a creature of Washington, he acted as he would have in New York, without any intention to do wrong. In short, to put it colloquially, he can plead: “I’m a moron when it comes to Washington norms of behavior – and proud of it.”
Granted the President is unlikely to want to make this defense. It makes him look almost a foolish as Steve Martin. But it would make for an effective response to charges of corrupt intent – most especially because it has the unfortunate ring of truth to it.
And therein lies the rub. The criminal law may not provide us with the certainty we seek. And we have come to the point where the President’s ignorance of Washington is his best defense against criminal charges.