What about Hillary's 30,000 emails? What about Joe Biden's boxes of classified materials in his garage? Mike Pence too had classified documents at home. Why did they get away with it and Donald Trump indicted?
Hours after the first indictment of a former US president on federal charges, the subject, Donald J. Trump — who was for a brief part of his time in the US Courthouse "the property of the FBI" as the bureau describes the status of a person under its custody — was acting unlike any other accused person. He held a rally at his Bedminster, New Jersey, club before a packed and loud audience of supporters and raised the aforementioned questions.
He called Biden, "the most corrupt president in American history," saying he put the prosecutors on him to stop the candidate who was going to defeat him. Trump made the claim although he is yet to secure the Republican nomination.
But the e-mails resonate with his supporter base. In Trump rallies, crowds boo and chant "Lock her up," at the mention of Hillary's e-mails. They are now doing the same thing at the mention of Biden or Pence and their possession of classified materials after leaving office.
So, what is the difference?
Why hunt down Trump in a systematic and unfounded persecution as it happened in 16th century Massachusetts when women, believed to be witches or involved in witchcraft, were hunted down and burned at the stake. That is the way Trump wants you to see what is happening.
"Whatever a president decides to take with him it is his absolute right, it is the law," said Trump at Bedminster, stressing the difference between himself and Hillary.
There is, however, a major difference: Intent.
Mens Rea is the legal term used in the field of criminal law around the world. Intent. It boils down to intent—whether the accused acted with a conscious purpose.
The US legal system, as many jurisprudences around the world, requires an analysis of the mental state at the time of an illegal action to distinguish between those who have intentionally or knowingly engaged in criminal conduct and those who may have indeed committed the acts but without criminal intent or with a lesser degree of blame.
A serious legal system does not want to incarcerate those who break the law without criminal intent. While Trump is portraying himself as a victim of exactly that —an innocent conduct that may have violated a silly law — the facts show something different, says the government.
Unlike Hillary, Biden, and Pence, the indictment says facts show that Trump set out to take classified documents, to keep them, and then to obstruct their return, and in doing so, to obstruct justice.
Did Trump know this was prohibited? There is plenty of footage of him attacking Hillary that indicates he knew well what was prohibited.
Okay, those facts point to intent. But the burden on prosecutors is much greater.
They must also show that the former president acted to take property that did not belong to him without permission. This is referred to by the legal term 'Actus Reus'.
Prosecutors must also show that the intent and the act occurred at the same time and that there is a connection between the two. The indictment says Trump intended to take the records illegally and did take them.
The Justice Department says the efforts to hide the documents, evidence of which they present in video and photo format, show both the consciousness of a guilty mind and the guilty acts. Intent and action.
Trump claims that his actions were "perfectly legal" and covered by the Presidential Records Act.
Under the Act, however, and contrary to Trump's assertion, presidential records are considered the property of the United States government. When a president's term concludes, at 12:01 on inauguration day, the records generated during his time in office are to be transferred to the custody of the US National Archives.
The Act further sets specific requirements for the management of presidential records, mandating the records to be appropriately documented, maintained, and preserved. It also establishes a restricted period of 12 years, during which access to the records may be restricted from public disclosure “to protect national security and other sensitive concerns.”
Instead of turning the records to the archives, the prosecution alleges Trump loaded them up in the presidential plane and flew off with them.
But the burden of proof is high. The law must also prove causation. In other words, that his actions were the cause of the crime. The indictment indicates that the secret documents were selected and packed by Trump and that they were later stored and moved at his direction.
Before the government charges a crime, they must also be able to show that the actions of Trump resulted in harm to the United States. The implication is that secret information in the hands of foes puts in danger the lives of secret agents and those working for the interests of the United States abroad.
But espionage? We will look at that below.
But first, the government must prove that the conduct is clearly defined as illegal and is recognized as a crime under an existing law. The law, as it stands with its highest penalties, exists because in promising to prosecute and jail Hillary, Trump pushed for, and, in 2018, signed a law that increased the penalties for mishandling classified information from a misdemeanor to a felony and upped the penalty from one year to five.
For a prosecution to stand, a judge must determine that the charges meet all these requirements: the act (actus rea), intent (mens rea), concurrence (the act and the intent), causation (actions lead to crime), harm (to the United States), and illegality. Otherwise, he should dismiss the charges.
In the US jurisprudence, these elements collectively form the basis for determining criminal liability and are the elements to prove guilt. The Sixth Amendment of the US Constitution guarantees the right to a fair trial and requires that guilt in criminal cases be proven beyond a reasonable doubt.
Within the realm of American criminal law, however, the notion of mens rea occupies a paramount position. It is the vital tool to discern between deliberate or conscious illegal activity — reserving criminal charges exclusively for those who possess the requisite mental state indispensable for the commission of a crime— and those who act illegally but without intent.
According to government investigators, after considering all the facts, Hillary, Biden, and Pence fall under the latter category. They say Trump is a prime example of the former: deliberate and conscious illegal activity.
Okay, but that is a stretch to espionage.
Despite suspicions that Trump had colluded with Putin, allegations that resulted in investigations that returned no compelling evidence, it is a stretch to charge him with espionage. Though he has been charged with several counts under the Espionage Act, he has not actually been charged with espionage.
To decipher this, it is important to note the difference between the common understanding of espionage and the Espionage Act. The Special Prosecutor’s office filed 31 charges against Trump under the Act.
The Act is a 1917 law enacted in the wake of WWI and criminalises various conducts related to the mishandling of sensitive government records “connected to national defense". It has undergone many iterative changes and been used to prosecute suspected Soviet spies and, lately, whistleblowers like Edward Snowden who leaked classified information about the existence of a domestic surveillance programme. Snowden has been living in Moscow since 2013, a fugitive from US justice.
Trump’s defense is that he declassified the records in question and that his broad presidential powers gave him the authority to disclose or declassify materials.
The Espionage Act, however, does not explicitly require prosecutors to prove that the records themselves were classified, and though Trump has alluded to the right to declassify documents mentally — just by thinking about it, he said — his defense lawyers have not made that argument in court nor provided evidence to suggest they were ever declassified according to existing protocols.
Despite Trump having been charged under the Espionage Act, it is a mischaracterisation to say that he has been accused of espionage in its common understanding as the illicit passing of sensitive information for the benefit a foreign government. There has been no allegation or proof of that. And Trump took offense to that in his remarks at Bedminster.
What makes Trump different not just from Hillary, Biden, Pence or any other defendant, however, is his ability to convince millions of people that he is an innocent man being treated unfairly, “politically persecuted.”
He has effectively used his platform to cast doubt on the motives of prosecutors, question the legitimacy of the charges against him, and portray himself as a victim of a politically motivated witch hunt.
Trump, unlike any other indicted person, was able to raise a purported $2 million in donations on the day of his indictment from supporters who could only dream of the power and privilege he enjoys.
Indicted defendants can be overwhelmed by the power and resources of the United States government against them. Trump uses the projection of that power to raise money for his defense. But what is more, he has influence over Republican lawmakers who are threatening to defund the Justice Department—a stunning development on its own.
Ohio Senator J.D. Vance has been threatening to bring the US Justice Department to a halt, as a pushback to the Trump indictments. Others are calling to defend the Special Counsel's office.
Such a move would make Trump the only individual in history who, as a wealthy individual who can tap into funds from millions of supporters, is
pitted against a financially hobbled prosecutor's office, giving him not just a fairer but a better chance than just about any defendant with the weighty evidence put forth to beat the charges levied against him.
But it is his ability to convince dozens of millions that he is an innocent man unfairly charged that poses a most significant challenge to the Justice Department.
Trump only needs to convince one person on the jury to vote against conviction to be acquitted.
Despite the evidence, there is the concept of Jury Nullification, when a jury or jury member, despite evidence of guilt, chooses to acquit a defendant based on disagreement with the law or its application.
In the US system it only takes one person.
Intent or not.
Just one.
