Mens Rea
We have now watched seven of the presumed eight public hearings of the Select Committee to Investigate the January 6th Attack on the United States Capital. These hearings have been startling to most of us. I would like to think they were required watching for every voting-age citizen of the United States, but America doesn’t do that sort of thing. We prize our individual liberty too dearly to ever mandate something so specific. Instead, the coverage of the hearing is extensive enough that any citizen that is not posturing to avoid knowing what is being uncovered, is sure to hear of the most salient facts. I will admit to being highly biased in my political thinking, but I also believe I can be honest and acknowledge missteps by politicians and their policies from the liberal side of the spectrum as much as I can for those on the right.
The hearings have been extremely well choreographed and each has focused on one aspect of the perceived criminality of the actions on and before January 6th that involved ex-president Trump. It has been clear from the start that the committee as a whole has a point of view that they are driving towards, which is that Trump was at the center of, was a participant and leader of and was directly and actively engaged in the criminality of the efforts to interfere with the workings of the government in regard to the peaceful transition of power in order to maintain control of the government of the United States. That is a strong charge which, in its most extreme legal description, is called seditious conspiracy or, actually, treasonous behavior. No President in the 245 year history of the United States has even come close to being accused, much less convicted of such a dastardly deed. The binding legal principle that runs through each and every appendage of this claim is that of Mens Rea, the knowledge or intention of wrongdoing. That is to say, that Trump knew exactly what he was doing at every step of the process and was aware that what he was doing was wrong, and still went about prosecuting the various acts that led to the insurrection on January 6th. Mens Rea is a very difficult thing to prove since it is all about what is transpiring in the mind of the accused. When you hear people say that something goes to intent, that is Mens Rea. When you hear people discuss whether some defendant may or may not know what he is doing, that goes to Mens Rea. When it is said that a president is just following the advice of his advisors and didn’t understand the underlying issues, that is Mens Rea.
While Bennie Thompson, the Democratic Congressman from Mississippi is the Chairman of the Select Committee, no one doubts that the spiritual leader of the Committee is its Vice Chairman, Liz Cheney, the Republican Representative from Wyoming. Liz Cheney is in this position for two obvious reasons. In a bipartisan world it has much more impact for a Republican to attack a Republican President than if the opposing party conducts the attack. This is why almost all of the witnesses that have been put on the stage of the hearings for the American public to hear directly from have been Republicans. It simply is more convincing to hear someone who voted for and followed President Trump to suggest that he crossed an important line and did something criminal. The second reason Liz Cheney is in such a leadership role is that she is both outspoken and well-spoken. As the daughter of ex-Vice President and ultimate Republican power broker, Dick Cheney, Liz was born in 1966 and spent her formative youth as the oldest daughter of a Congressman who split his time between Washington D.C. and his home state of Wyoming. Her studies in college were on political science and she went on to get her law degree in order to pursue her career in and around the Federal Government. Between her time in the State Department to her work on Fred Thompson’s presidential campaign, she spent her working life amidst the politics of the nation. That, and her various campaigns for Senate and Congress have made her into a solid political thinker and speaker.
Throughout that career and progression, she also developed a fierce commitment to her principles, which seem to have included righteousness and loyalty to her oath and country. Unfortunately, what sounds like an obvious bent for a Congressman, has proven not to be as political party loyalty has taken on a priority above that of loyalty to oath and country for the vast majority of Republicans (I’m sure some Democrats similarly suffer this fate, but they are not the ones on the hot seat in these hearings). Accordingly, Liz Cheney is out front at each and every hearing making opening and closing statements, preparing the audience for the importance of what it is about to hear and reminding them afterwards of the severity of the crimes being displayed. She has been unflinching in her direct accusations that Donald J. Trump broke the law of the land and committed crimes against the people of America through his actions and inaction. This has not been a subtle effort.
One of the more interesting aspects of this exposition is that after all the evidence is laid out and the witnesses have made their statements, Liz Cheney more than any of the other members of the Select Committee, has made it her business to delve into the mind of Donald Trump, a place that many of us would fear to tread. She has made the direct case now that Trump is a 76-year old man who is fully compos mentis and therefore capable and responsible for being accountable for his actions and inaction. She has thus made it her business to say in no uncertain terms that he has exhibited Mens Rea as to the events of January 6th at the United States Capital. In other words that might be used by Perry Mason, he was guilty of premeditated conspiratorial efforts to both organize and mobilize an effort to overturn an honest and legitimate election and that his actions included trying to coerce state officials to breach their oaths of office to fraudulently modify the election results, to attempt to subvert what was supposed to be an arms-length Department of Justice to do his personal political bidding, and to organize a mob who was spurred on by his false claims (claims that he was fully aware were, indeed, false) to do violence against the United States Capital, its protectors, its occupants and the very rule of law that underlies the democratic process.
To anyone listening to these hearing and paying attention, these are not frivolous or far-fetched accusations, they have gone from being sound theories to provable facts. The hardest part of that proof to speak to unequivocally is the Mens Rea element, but Liz Cheney has continued to shine a light at each opportunity on why it is factual to say that Trump knew what he was doing and knew it was wrong. This case, if it were being brought against any other person than the President of the United States, would be cut and dried and long since over. But for a President (or an ex-President), the unwritten rule seems to be, and perhaps should be, given that he was duly elected by the people of the United States (perhaps not via popular vote, but at least by the historically accepted methods of the electoral college), that the bar is set higher in terms of the evidence needed for indictment and conviction. No less than the future of our democracy is at stake and it would be equally harmful to rush to judgement as it would be to look away and ignore the crimes. The Select Committee has had that challenge from the start since their exposition would undoubtedly set the tone for the national mood and appetite for pursuit of an indictment by the Department of Justice. Merrick Garland, the Attorney General who leads the DOJ is a man of history. He epitomizes the Republican manipulation of the Supreme Court as a man who should have been allowed to join that court, and now he is the man who must independently decide whether to pursue a criminal case against Donald J. Trump and place Trump into that unique historical position (in addition to his unique position as the only President to be twice impeached). I respect Garland for his calmness and care in the face of this challenge, but I am one who believes he will move to indict based on everything the Select Committee has shown. The Mens Rea of Donald Trump has a lifetime of precedent to prove beyond any doubt that his corruption was total and willful.