Mens Re and Donald Trump

June 30, 2023

Posted in: Democracy, Trump

A very important point of law — mens rea — may decide how the Trump Mar-a-Lago documents case plays out, perhaps even deciding his innocence or guilt.

Section 793(e) (“The Espionage Act”) requires the government to prove that Trump knew he had National Defense Information (NDI) in those boxes at Mar-a-Lago, that Trump knew there was a government official entitled to receive the information, and also that Trump then willfully failed to deliver it to that official. That’s the standard the government has to prove in order to convict Trump, and it requires understanding what he thought at the time he kept the documents. None of this speaks to the charges of obstruction directly, except to say it will be hard to prove obstruction to a jury when there was no underlying crime.

Mens Rea is Latin, and refers to criminal intent. The literal translation is “guilty mind.” It​ refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. Mens rea goes to intent, your mind, your brain, when an action occurred. For example, in criminal cases the majority of crimes require intent; the prosecutor must prove that the person willfully intended to do that which he did. For example, if you punched someone in the face and you intended to do that, that’s a crime, as opposed to hitting him by accident, for example, or truly believing the action was legal and not a crime, such as in self-defense.

In Trump’s case, things are not as simple as the CNN version of events, i.e., Classified in the ugly shower room = Conviction for the Orange Man. In order to convict, the documents, classified or not, are simply a starting point. Special Prosecutor Jack Smith will need to prove Trump knew what he was doing, and did not believe what he was doing was lawful. For example, under the Presidential Records Act of 1978 (PRA) the president designates all records he creates either as Presidential or Personal Records. A former president is supposed to turn over his Presidential Records to the National Archives and Records Administration (NARA), and he has the right to keep his Presidential or Personal Records as defined by the law (there are exceptions, such as for national security information), usually for his library. It is unclear Trump’s choices follow the letter of the Act.

Trump can however claim he fully believed (even if wrongly) the boxes of material, most of which was not classified and included newspaper clippings and notes from other world leaders, are his Personal Records under the PRA. If so, did he knowingly retain NDI? Did he really think those documents “could be used to the injury of the United States” as the Espionage Act requires or did he just think of them as mementos of his time in office, his Personal Records of the four years? If he thought these boxes were his Personal Records, he may have believed that NARA simply had no right to receive them at all.

We know what Trump is likely to say about such matters at his trial. Can the special prosecutor prove different? He seems to have three avenues via which to do this, two of which are potentially weak.

What may be the strongest view of Trump’s mens rea at one point in this saga are audio tapes of him. The indictment suggests there is a tape recording of one of at least two instances where Trump showed off the documents to people without security clearances. On the tape, recorded according to the indictment with his knowledge and consent, Trump admits the document at hand is classified, and in a schoolboy-like way says he should not be showing it to a writer, a publisher, and two Trump staffers. All that could be seen as a confession of sorts that what he held was NDI, not something personal. A lot depends on that tape, its admissibility in court, and whether a Florida jury ultimately believes it literally and not as just another episode of Trump bragging.

A second possible source of mens rea which might help convict Trump are compelled statements made by his own lawyer, Evan Corcoran, in front of the grand jury and via written notes in contrivance of standard attorney-client privilege which would otherwise shield those remarks. What might the lawyer have said and how could he have violated attorney-client privilege and still have the material appear admissible in court?

The indictment claims Trump instructed his lawyers to claim falsely he did not have the documents DOJ subpoenaed, and suggesting his lawyers destroy some of the documents (“pluck it out”), or just “not play ball.” Trump allegedly spoke positively of Hillary Clinton’s legal team, which deleted tens of thousands of emails while supposedly not informing her to keep her clean. A jury might find Trump’s actions alone speak to intent, his active attempts to hide physical boxes of documents from investigators, and treat the lawyer’s statements as confirmation.

Attorney-client privilege is recognized as one of the cornerstones of fairness in our system. In the Trump case, the Justice Department used the one major exception to privilege, when the communication is intended to further a criminal or fraudulent act (the “predicate crime”), to compel Trump’s lawyer to give evidence against their own client. Justice asserted Trump lied to his own team about having no more classified documents, and that this constituted a crime of fraud and maybe obstruction, and thus privilege is not available and Trump’s lawyer can be made to testify against his client. The crime or fraud exception to attorney-client privilege itself has a long history, dating back to English common law. In the United States, the crime or fraud exception was first recognized by the Supreme Court in the 1840 case of United States v. Privileged Communications. Trump’s defense team will no doubt work hard to have the lawyer statements declared inadmissible, claiming without a clear finding on obstruction no crime was actually committed at that time by Trump.

The last avenue available to the prosecution to show Trump’s mens rea has some dandy complications flowering around it, and could help unravel the case to Trump’s advantage. Alongside Trump is his valet/aide, Waltine Nauta, who is charged in parallel with Trump under the Espionage Act when any rendering of reality shows Nauta simply was moving boxes around the bowels of Mar-a-Lago at his boss’ request. That’s a long way from a crime, even considering the legal looseness of the Espionage Act. But the point in charging Nauta is not to seek to convict him; the point is to get him to accept a plea or even an immunity deal to tell everyone exactly what Trump was thinking at multiple critical points in the saga. As Trump’s closest non-blood related aide, Nauta’s testimony would be compelling to a jury. If it shows Trump knowing he had done wrong keeping the documents, and that Trump actively used Nauta to try and physically hide them, that would be a pretty much slam dunk case against the former president.

The problem, besides the unknown loyalty Nauta may harbor towards Trump, is it appears DOJ leaned too hard on Nauta’s own lawyer, in an attempt to get him to persuade his client to turn state’s evidence in favor of the prosecution. Nauta’s lawyer, Stanley Woodward, alleged in a court filing that during a meeting with prosecutors about his client’s case back in November, the head of the Counterintelligence Section of DOJ’s National Security Division Jay Bratt “suggested Woodward’s judicial application [for a DC Superior Court judgeship] might be considered more favorably if he and his client cooperated against Trump.” Bratt allegedly remarked that he did not think that Woodward was a “Trump guy” and that “he would do the right thing.”

Assuming this is not simply made up (Woodward has a golden DC resume to stand behind, including a decade at Akin Gump Strauss Hauer & Feld, headquartered in Washington. It is the second-largest lobbying firm in the United States and is consistently ranked among the top law firms in the U.S.) this level of misconduct against a senior DOJ official could sink the Trump case, at the very least removing Nauta from the Trump trial as his case is thrown out of court. Woodward’s a poor candidate for accusation he made the whole thing up.

So, what was Trump thinking? Answer that and you’re a long way toward knowing the resolution of the Mar-a-Lago case.

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