One of my kids is studying law, and I’ve read a bit over her shoulder as she prepped for exams. Two critical things stand out: unlike in literature, words in the law have very specific meanings (lie, fraud, possess, assault), and intent matters quite a bit. The latter is very important, because people say things all the time they do not mean, such as “If Joe in Sales misses that deadline I’m gonna kill him.” No one’s life is actually in danger, we all understand.
Misunderstanding words when you pull them out of a conversation and try to bring them to court, and determining intent based on what you “believe,” are really at the root of the ever-growing string of failed legal actions against Donald Trump (there are some 19 still pending.) We have, and this is just hitting the highlights, Russiagate, the Mueller Report, Impeachment I and II, Stormy Daniels, failed accusations of real estate valuation fraud in New York, and most recently, a grand jury seated to look into election fraud in Georgia. Intent was the deciding factor in each case closed.
For example, in Impeachment I, the Ukraine caper, the entire brouhaha hinged on Trump’s own words in the transcript of his call with the Ukrainian president. But did they mean Trump was demanding foreign interference in the 2020 election? Or was he asking an ally to run down unethical actions by Joe Biden as a public service? What was Trump’s intention when he said “A lot of people want to find out about that so whatever you can do with the attorney general would be great.” Later in the call Trump suggested aid to Ukraine might be withheld, though not in specific reference to any investigation into Biden.
The people who brought the impeachment decided all that constituted an illegal solicitation of a foreign in-kind contribution to Trump’s re-election campaign, maybe even extortion. The allegation was referred to the Justice Department, which declined charges. Many Democrats though that unfair, failing to see the lack of anything coming of the call (i.e., no investigation by Ukraine), the lack of anything withheld (the aid was eventually delivered) and the lack of intent to commit a crime by Trump. The legal tests for words like intent and extort were not met. Justice correctly dumped the case and there was no conviction in the Senate. Case closed.
Same story in New York, where Trump valued real estate at a lower price for tax purposes and a higher price when used as loan collateral. It’s called valuation and is legal. But some decided saying one thing to one person and another to another person to gain something was “fraud,” and everyone pursuing the case forgot that they also had to prove intent, that Trump lied about valuation with the intent to commit a crime. Case closed.
Yep, same with the Stormy Daniels saga, when Trump, via Michael Cohen, paid money to Stormy to keep quiet about their affair. Sleazy enough, but paying someone as part of a non-disclosure agreement is not illegal. It would be a crime if the money was paid by Trump with the intent of influencing an election, but not if the cash-for-silence was to protect his marriage. Campaign finance laws require proof a person willfully violated the law. If this kind of case would have ever reached court, Trump would have simply denied intent. Case closed.
Another example can be found in the incitement allegations surrounding the speech Trump made just before his supporters entered the Capitol building January 6. A democracy can’t lock up everyone who stirs up a crowd. Speech which inspires, motivates, or warms the blood cannot be illegal as it is the very stuff of democracy. Trump thought the election was unfair and had a right to say so.
Brandenburg v. Ohio refined the modern standard to 1) the speech explicitly or implicitly encourages the use of violence or lawless action; 2) the speaker intends their speech will result in the use of violence or lawless action, and 3) imminent violence or lawless action is the likely result of the speech. Brandenburg is the Supreme Court’s gold standard on what government may do about speech that seeks to incite others to lawlessness.
The key is always intent. You have to prove, not just speculate, the speaker wanted to cause violence. Listeners’ reaction to speech is not alone a basis for taking action against a speaker. You’d need to prove Trump wanted the crowd to attack the Capitol and set out to find the words to make that happen. It ain’t gonna fly for the January 6 Committee. Case closed.
Which brings us to Georgia, where the NYT asks hopefully “Will Trump Face a Legal Reckoning in Georgia?” On January 2, 2020, facing an election loss, Trump called Georgia’s Secretary of State to demand he find 11,780 votes, one more than Joe Biden’s tally. Did Trump encourage the secretary to commit election fraud? That prosecution will fail, as did all of the ones above, for the same two reasons: words are not solely what they seem, and intent is hard to prove.
For example, to the Democratic lay person “find” means commit election fraud to come up with votes. But well before anything goes to court, it will be made clear “find” can also mean, in just one example, recount all legal ballots to see if a mistake can be found which legitimately sends more votes to Trump. The other issue is again intent. To prove solicitation of election fraud, Georgia law requires a person intentionally “solicits, requests, commands, importunes or otherwise attempts to cause” another person to engage in election fraud. Trump and his associates need only to maintain they meant “find” as in recount, not as in cheat. Case closed.
In seeing the same mistakes made over and over, you’d think maybe the Democrats need some better lawyers. But don’t worry. Democratic lawyers know just as well as Republican lawyers none of these cases ever had a chance in a real court. Their purpose was purely political, to manufacture some headlines, to influence voters, to create the impression Trump has to be guilty of something if only he could be stopped from wriggling away.
The goal is to convince voters to ignore the rule of law and take matters into their own hands in 2024 to stop Trump. And we’re not alleging prosecutions which were designed to fail, we are explaining it. Case closed.