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Post Trump's Biggest Legal Problem May be in Georgia
Created by John Eipper on 02/19/21 3:03 AM

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Trump's Biggest Legal Problem May be in Georgia (Timothy Ashby, -Spain, 02/19/21 3:03 am)

I wish to defend--and compliment--John on his moderation of the WAIS exchanges. He is invariably fair and I continue to be amazed and grateful that he takes the time to serve as the nexus for WAIS considering his busy schedule.

Writing as both a lawyer (licensed in Florida and the District of Columbia) as well as a former senior political appointee in the Reagan and Bush administrations, I thought from the beginning that Trump's impeachment for  "incitement of insurrection" against the US government and "lawless action at the Capitol" would turn out to be little more than political grandstanding. 

However, his attempt on 2 January to influence the results of the election by pressuring Georgia Secretary of State Brad Raffensperger to change the state's vote total appears to be a far more serious criminal act.  Earlier this month, Raffensperger's office opened an investigation of potential election interference, including Trump's phone calls, a step that could lead to a criminal investigation by state and local authorities. Trump's calls may have violated at least three state criminal election laws: conspiracy to commit election fraud, criminal solicitation to commit election fraud, and intentional interference with performance of election duties. The possible felony and misdemeanor violations are punishable by fines or imprisonment. 

Unfortunately, If Trump were prosecuted, he would likely argue that he genuinely believed the election was rigged against him.  Criminal laws generally require a "mens rea"--guilty state of mind--and an "actus reus"--an overt act in furtherance of a crime. This may be a high hurdle to clear in this case.

JE comments:  Tim, I am flattered by your first paragraph, and grateful for your years of support.  As for Trump's legal woes in Georgia, can you walk us through the legality of the recording?  Federal law permits "one-party consent"--meaning, I can record any incoming call I want, as long as it's to me, or record a call I make.  Is this correct?  And more importantly, did Trump know he was being recorded by Raffensperger?

A second question reaches into psychology.  Pathological liars enjoy the advantage of believing what they say.  In such a case, how can mens rea be proven in court?

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