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The attorneys who represented former President Donald J. Trump in his second impeachment trial were unprepared, befuddled … and victorious. It helps, of course, to have the requisite number of jurors on your side before you start. But prevailing in an impeachment “trial” in the Senate is very different than prevailing as a defendant in a real criminal trial in a real court. Though Senate Republican leader Mitch McConnell said Trump was “practically and morally” responsible for the deadly Jan. 6 riot at the Capitol, that is quite different than being criminally responsible.
If Trump is charged criminally in one of the jurisdictions in which he is under investigation, and goes to trial, he will not have the advantage of a predisposed jury. In a real trial, of course, the prosecution has the burden of proving his guilt beyond a reasonable doubt, and the jury would need to be unanimous to convict (or to acquit). That is properly a difficult burden. And a real defense by a real defense lawyer in a real courtroom is also more difficult. It would need to be cogent, thoughtful and purposeful — quite unlike the defense offered at Trump’s second impeachment proceeding.
What might a real defense sound like?
A Georgia phone call explained away
Here’s one example. In Georgia, Trump is under investigation for a post-election phone call he placed to Georgia Secretary of State Brad Raffensperger. During that call, Trump told Raffensperger that “I just want to find 11,780 votes, which is one more than (the margin of defeat) because we won the state."
Problematic? Yes. Why?
In Georgia, it is a felony for anyone to solicit (or request or importune) another person to violate state election law. The Senate impeachment trial had no formal legal standard and no “scienter” (or intent) requirement connected to the charge that Trump incited the Jan. 6 insurrection — which he most assuredly did. Georgia law, however, requires that to find Trump guilty, the prosecution would have to prove, beyond a reasonable doubt and to a unanimous jury, that he acted with “intent that another person engage in conduct constituting a felony.”
Intent is difficult to prove. It is the thing prosecutors struggle with the most. It is easy to prove Trump called Raffensperger and what Trump said to him. The call was recorded. But did Trump intend for Raffensperger to commit a felony?
In her opening statement, a real defense attorney might tell the jury:
My client was wrong to think he won Georgia. He did not. The vote was relatively close, but not that close. And, after numerous recounts, the outcome did not change. He lost Georgia, the Electoral College and the presidency. We do not contest that here. But what you need to know is that he actually believes he won Georgia, the Electoral College and the presidency. As crazy as that sounds, he actually believes it.
He lives in a bubble, surrounded by sycophants and charlatans who repeatedly lied to him. He voraciously consumes news from irreputable sources that reinforce these lies. His fourth-rate personal lawyers told him that the election was stolen from him, and that they would win it back in court. He still believes these shameless lies. Crazy? Wrong? Sure. But being crazy or wrong is not a crime. Therefore, his call to Raffensperger is not a crime.
Georgia secretary of state: My family voted for Trump. He threw us under the bus anyway.
Why? His mind is addled. That negates intent. He did not intend for anyone to “engage in conduct constituting a felony.” He just wanted what he believes is his — a victory in Georgia. Further, my client said “I just want to find 11,780 votes.” He did not say he wanted anyone to do anything improper to obtain those votes. He wanted them found. My client also said on the call that “we won the state.” He believes that, too. He believes those votes — his votes — exist, and he wanted them located.
My client is odd but, just like crazy and wrong, odd is not a crime. The burden is on the prosecution to prove, beyond a reasonable doubt, that my client acted with the intent required by the statute. That, they cannot do.
An actual trial would focus on intent
Now, it is not clear to me that Trump would permit this defense on his behalf, or that he could find a good attorney to represent him, or both. And it would not be an honor to defend him (as it would be to represent other presidents). I would prefer a root canal. But we live in a country — thank goodness — where everyone is entitled to competent counsel in a criminal case.
Thoughtful and committed defense lawyers and public defenders do their best, every day, in state and federal courtrooms around the country on behalf of difficult clients who did bad things and left behind lots of evidence. There are ways to defend Trump. The disingenuous nonsense you heard from Trump’s defense team at his second impeachment trial would never fly in a real court with a real judge, a real jury, and real rules of evidence and procedure. In a real trial, it would be sensible for a good defense attorney to focus on intent.
Proving intent in a real criminal case to a unanimous jury by proof beyond a reasonable doubt is difficult. It should be. These are vital and cherished components of our criminal law and of due process, and important to remember when we talk about criminal liability — Trump’s or anyone else's. It is not easy, nor should it be.
Chuck Rosenberg, a former U.S. attorney and senior FBI official, headed the Drug Enforcement Administration from 2015-17.
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This article originally appeared on USA TODAY: Trump legal future: New lawyers could defend him better if he let them