“A Defense Lawyer’s Worst Nightmare”

From an ex-DOJ prosecutor whose insights I often seek, responding to a question I asked about this Prime Nugget item from yesterday.

Your layman’s sense is right: “this tells me that Mueller’s interest may not suggest he thinks these other events are indictable crimes in themselves. He may think they are evidence of a pattern which could strengthen a criminal case about the two earlier incidents we knew about – the Flynn request and Comey’s ouster.”

To put a finer point on this, to show obstruction, Mueller’s team will have to show that the President acted with a corrupt intent. That is what lawyers call the “mens rea” element of the crime, which they will have to prove beyond a reasonable doubt (if it goes to court, as opposed to Congress). All of these facts, both pre- and post-Comey firing, are evidence of the President’s state of mind and intent. I would argue that such facts should come into evidence as direct state of mind evidence for the underlying act. They could also be admissible as “other crime or act” evidence, known as 404(b) evidence, which can be admissible to prove motive, intent, plan, knowledge, lack of accident, etc.

As you know, I’ve been saying this for awhile: Trump is a defense lawyer’s worst nightmare. He just can’t seem to control himself from doing and saying incriminating things. It’s a toxic mix of arrogance and ignorance. To me, this case has always been about the Comey firing after Comey refused to “let Flynn go.” That’s the case. All the rest comes in to prove the President’s corrupt intent when he did so.

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