criminal-law fraud elections politics
&quot;Trump privately admitting it&#39;s over&quot; -- can he be therefore be prosecuted for Raffensperger call?
<p>Not a lawyer, but if <a href="https://www.politico.com/news/2021/01/05/donald-trump-election-challenge-455233" rel="nofollow noreferrer">this reporting</a> is correct, wouldn't it greatly increase Trump's legal exposure for the <a href="https://www.nytimes.com/2021/01/03/us/politics/trump-call-georgia.html" rel="nofollow noreferrer">call with Brad Raffensperger about &quot;finding 11,780 votes&quot;</a> this past Saturday, January 2?</p>
<p>The hard part about proving mens rea for <a href="https://law.justia.com/codes/georgia/2016/title-21/chapter-2/article-15/section-21-2-604" rel="nofollow noreferrer">Georgia §21-2-604</a> and <a href="https://www.law.cornell.edu/uscode/text/52/20511" rel="nofollow noreferrer">52 U.S. Code §20511</a> is demonstrating that Trump knew that he actually lost, rather than operating under the sincere delusion that he won big, and this article would seem to blow that defense to smithereens.</p>
<p>But I get that his MO is to say a bunch of contradictory BS at once, so he can't be pinned down to any specific POV that might prove inconvenient from the legal standpoint. Perhaps he could leverage his frequent (not to say incessant) public statements on how he only lost because of election fraud to establish a plausible deniability that might hold up in court.</p>

<p>There's also the matter of admitting its over is not admitting he lost.  Trump could be saying privately that he thinks all possible attempts to contest were blocked, but that since almost all were blocked for non-evidentiary reasons, he can still hold that had the cases progressed to the evidentiary portion the outcomes would have been different.</p>
<p>From an apolitical example, just because someone cannot be tried because of statute of limitations, doesn't mean they didn't do the crime... just that the prosecution didn't charge them in a timely manner.  The prosecutor, upon getting the decision from the judge that the trial won't even happen, could say to himself or a client &quot;It's all over&quot; while still believing they had the guy they accused dead to rights for the crime.</p>
<p>There is further issues with the Politico report that could negate this as evidence of Mens Rea (the first matter is for some reason the link to the report is not working for me, so pardon my ignorance of the details in the article).  I'm supposing that Donald Trump did not tell the reporter this story himself, but rather a likely unnamed source that is close to Trump.   Here the problem in court would be a matter of evidence (Trump would say he never said this... Politico can't refute that claim by saying we know a guy who says you did...  the guy who said Trump said it could testify, but as of yet, we don't have any identity at this stage in the game... the burden of proof is on those who say Donald Trump said something that He himself says he never said or doesn't recall saying.</p>
<p>The net result is that the statement attributed to Donald Trump would not be evidence to Mens Rea in any prosectuion right now because there is no specific person attributing the hearsay statement to Trump when Trump denies saying it (it is not hearsay to introduce statements agains opposition's intrest at trial, but the testimony to such evidence needs to be made by a person who was privy to the statement when it happened (they don't need to be the party that the comment was made to... just had to have a valid way of hearing it first hand).</p>
<p>With all verbal statements, the larger context also applies, so access to the larger conversation as well as Trump's state of mind in the moment he said it to help infer ultimate meaning.  Did Trump think he actually lost because he accepted the results OR did he think lost because he was cheated and denied a chance to be heard in court or have his evidence considered beyond pretrial determinations?  The quote could be said in either context and mean totally different things as evidence to the two specific crimes you accuse him of.</p>
<p>It's not something to dismiss off hand, but at this stage it is also not a smoking gun.  Remember the classic Twilight Zone episode &quot;To Serve Man&quot; and that a single lone statement can have multiple meanings... assuming the most appealing meaning can have disasterous results when the statement is put into a broader context.</p>
