I’ve been getting a number of questions concerning Trump’s call to the Georgia Secretary of State and whether it opens him up to felony charges of election tampering. As incomprehensible as his comments were, it would be difficult to make a felony charge stick. The reason is a legal principle called mens rea.
The doctrine of mens rea means that the president would have to be "knowingly and willfully" attempting to get a false tabulation. The problem with proving mens rea is that the president may actually believe the allegations he has been espousing. Since the courts have unanimously found that his arguments have no merit, there is a presumption that his arguments are meritless. Mens rea would therefore require the court to look deeper and examine whether the president was suffering from some kind of psychosis that excused his conduct. Examining his mental aptitude, regardless of moral failings involved in making the call, is something that the courts would be reluctant to do. [Written January 4, 2021]
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