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"He has no path! He's going to be convicted" Katyal & Berke obliterate mens rea defense [1]

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Date: 2023-08-03

There are some people who are preternaturally gifted in some way. Both Neal Katyal and Barry Berke are gifted attorneys and they both absolutely obliterated the mens rea, I sincerely believed that I won, defense on Nicolle Wallace's news program, "Deadline".

Nicolle Wallace:

We covered it as an open question, right, intimacy of Trump's hands on role in fake electors. He's its architect, he's its cheerleader, he's the one that when it looks too hard, he's pushing and prodding his campaign people to keep going. They're emailing amongst themselves all of the smoking guns, 'They're false, we better not call them 'false' in our emails'. I mean that's something Chuck Rosenberg said to me seven years ago, 'Not all criminals are smart 🤓!' What do you see in this sort of tapestry of Trump's dominance in the recruitment of fake electors and slates of fake electors?

Neal Katyal, "Yeah, so Donald Trump has two defenses that he's trying to trot out. One is there was no bad criminal act. All I did was speech. And as you rightly point out, boy the indictment just shows his hands were thick in it, not just speech, but active involvement and orchestrating all of these different plots whether it's fake electors or whether it's disrupting the count on January sixth, so many different things. So that then leads Trump to pivot to a different defense, which is, 'I didn't have the criminal intent, the bad men's rea. I legitimately thought I have won. ' And the clips you just showed, I think, are devastating proof that Trump knew and had to know something else. Now I suppose he still has a defense which is ,'Everyone was saying that, but I believed something else. ' That is NOT A DEFENSE! As a criminal defendant you don't just get to invent your own reality and say, 'Well, I lacked the criminal intent' because of it. Like if I point a gun at and shoot you, I can't defend myself by saying, "Well, I don't think bullets kill people. When I shot you, I didn't think I would kill you at the time. At some point, all of these defenses that go to state of mind have to be tempered with a dose of reality. And when your own attorney general is telling you something, when your own top White House Counsel is telling you something, when the other top officials at the Justice Department are telling you something, when state officials are telling you something, when 62 courts are telling you something, if at that point you say, 'Well, I didn't believe ANY of them' , THAT ISN'T A MENS REA DEFENSE!"

Nicolle Wallace:

"Well, and there is also evidence to the contrary, that he didn't believe the crazy 🤣😧 people! This indictment makes clear that he thought Sidney Powell was crazy. which I guess cuts both ways, right? He amplified the crazy, but he knew it was nuts. I want to read this, we've talked about this a lot on the show, it shows up in the indictment. Trump tells Chairman of the Joint Chiefs Mark Milley that a national security issue would be for 'the next guy' . From the indictment, 'On the evening of January 3rd, the Defendant met for a briefing on an overseas national security issue with the Chairman of the Joint Chiefs of Staff and other senior national security advisors. The Chairman briefed the Defendant on the issue -, which had previously arisen in December as well as possible ways the Defendant could handle it when the chairman and another advisor recommended that the Defendant take no action because Inauguration Day was only seventeen days away and any course of action could trigger something unhelpful, the Defendant calmly agreed saying, "Yeah, you're right, it's too late for us. We're going to give that to the next guy." An hour later I think he would go on to shake down Raffensperger, I think I saw that same night or work the coup. I think that's the second or third the coup top DOJ but he knew he lost. So, he knew all of this. "

Barry Berke:

Those sort of statements in a criminal case are overwhelming, it's the defendant in his own words, big picture, he knew he lost. And even beyond that though, they don't have to prove whether he actually believed he may have somehow won, the question is did he know he was making false statements about what happened. He was told again and again these theories of Sidney Powell were crazy. He himself adopted that the notion that there were not really these stolen ballots or dead voters, he knew it, but he would nevertheless he repeated and repeated it. So, those sorts of statements are fatal to what he's going to say. You also see how it is all tied together in the indictment, when he was told that there's no way Pence is going to do something, he sends out another email to the mob to come put pressure, he again, does things. When he sent out the initial email, 'Come, it's going to be wild' that was right after he was told by his counsel that these crazy theories of Sidney Powell wouldn't work and they couldn't seize machines. So this tells such a compelling story.

I'll tell you as a defense lawyer, at trial, as someone who has had the good fortune of winning a lot of cases, we always say, 'What is your path to victory ? You need a path to victory.'

Nicolle Wallace:

Right

Barry Berke:

"Looking at this indictment, Donald Trump HAS NO PATH"



Nicolle Wallace:

"His path is reelection. I think he made that clear, right?"

…

Barry Berke:

"He has no criminal defense path. He is going to be convicted"

[END]
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[1] Url: https://www.dailykos.com/stories/2023/8/3/2184901/--He-has-no-path-He-s-going-to-be-convicted-Katyal-Berke-obliterate-mens-rea-defense

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