Wednesday, June 15, 2022
A basic principle taught in law school is that intent can be inferred from the circumstances. Juries routinely look at the surrounding evidence to determine if the accused had the intent to commit a crime. In street crime cases it is common for the crime to be committed outside the presence of the police, and prosecutors demonstrate the intent of the accused by presenting the evidence that allows the jury to infer from that evidence that the intent was present.
Willful blindness is commonly used in white collar cases when the individual, like a CEO, claims that he or she did not know the criminal conduct was occurring in the company. As stated in the Supreme Court's Global Tech case, "the defendant must subjectively believe that there is a high probability that a fact exists;" and "the defendant must take deliberate actions to avoid learning of that fact." Willful blindness is unnecessary as a tool to show knowledge when you have actual knowledge or when knowledge can be inferred from the circumstances.
Yes, you need a crime and there has been evidence presented of crimes. But I think we need to stay tuned further to determine who further committed these crimes. We already know that the DOJ has brought criminal cases against hundreds of individuals (see here). And as is typical in many criminal prosecutions, you start at the bottom and work up to higher level individuals. How high this will go remains to be seen, but cases have already been brought for charges of Conspiracy and Obstruction of an Official Proceeding, in addition to other criminal charges. Threatening the life of a vice-president and trespassing and damaging government property are not ones that will be overlooked with claims of the First Amendment.
As we listen to the January 6th hearings, it is important to keep in mind that 18 U.S.C. 371, the conspiracy statute, has two provisions - one is the conspiracy to commit a specific offense and the other is a conspiracy to defraud the government. It reads, "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy..." (emphasis added). For right now, I am looking closely at not only the first part of this statute - the specific offense part - but also at the second part of the conspiracy statute - a conspiracy to defraud the United States.